UNITED STATES v. GUTIERREZ CORTEZ (2019)

MEMORANDUM **

Simon Gutierrez-Cortez appeals from the district court’s judgment and challenges the 42-month sentence imposed following his guilty-plea conviction for attempted reentry of a removed alien, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Gutierrez-Cortez’s counsel has filed a brief stating that there are no grounds for relief, along with a motion to withdraw as counsel of record. Gutierrez-Cortez has filed a pro se supplemental brief, and the government has filed an answering brief.

Gutierrez-Cortez waived his right to appeal his sentence. 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 issue as to the validity of the waiver. See United States v. Watson, 582 F.3d 974, 986-88 (9th Cir. 2009). We accordingly dismiss the appeal except as to standard conditions four, five, and thirteen, 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 Watson, 582 F.3d at 977 (an appeal waiver does not bar a constitutional challenge to a supervised release condition). We vacate supervised release conditions four, five, and thirteen and remand to the district court with instructions to impose whatever alternative conditions it deems appropriate.

Counsel’s motion to withdraw is GRANTED.

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