UNITED STATES v. DAVENPORT (2019)

MEMORANDUM **

Eddis Davenport appeals from the district court’s judgment and challenges his guilty-plea convictions and aggregate 67-month sentence for conspiracy to commit bank fraud and aggravated identity theft, in violation of 18 U.S.C. §§ 1349, 1028A, respectively. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Davenport’s counsel has filed a brief stating that there are no grounds for relief, along with a motion to withdraw as counsel of record. Davenport has filed a pro se supplemental brief. The government has moved to dismiss the appeal, which Davenport has opposed.

Davenport waived his right to appeal his convictions, with the exception of an appeal based on a claim that his pleas were involuntary. Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief as to the voluntariness of Davenport’s pleas. We therefore affirm as to that issue and dismiss the remainder of the appeal of his convictions.

Davenport also waived his right to appeal most aspects of his sentence, provided the aggregate sentence did not exceed 71 months. We therefore GRANT, in part, the government’s motion to dismiss Davenport’s sentencing appeal. We affirm as to those conditions of supervision that fall outside the scope of the appellate waiver and remand for the district court to modify standard conditions five, six, and fourteen, which are unconstitutionally vague. See United States v. Evans, 883 F.3d 1154, 1162-64 (9th Cir.), cert. denied, ––– U.S. ––––, 139 S.Ct. 133, 202 L.Ed.2d 82 (2018); see also United States v. Watson, 582 F.3d 974, 977 (9th Cir. 2009) (an appeal waiver does not bar a constitutional challenge to a supervised release condition).

Davenport’s pro se supplemental brief contends that the factual basis for his guilty plea did not support a conviction for aggravated identity theft, and his sentence was unreasonable because the guideline offense level was arbitrary and his criminal history was overstated. These contentions fall within the scope of the enforceable appellate waiver and, in any event, are without merit. Further, we decline to address on direct appeal Davenport’s pro se claim of ineffective assistance of trial counsel. See United States v. Rahman, 642 F.3d 1257, 1259-60 (9th Cir. 2011).

Counsel’s motion to withdraw is GRANTED.

AFFIRMED in part; DISMISSED in part; REMANDED with instructions.