UNITED STATES v. MCCULLOUGH (2021)

MEMORANDUM **

Ronald Stephen McCullough appeals from the district court's judgment and challenges his guilty-plea conviction and 108-month sentence for possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(viii). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), McCullough's counsel has filed a brief stating that there are no grounds for relief, along with a motion to withdraw as counsel of record. McCullough has filed pro se supplemental opening and reply briefs, and the government has filed an answering brief.

McCullough waived his right to appeal his conviction and 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), and the parties’ briefs, 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). McCullough's pro se challenges to the district court's imposition of a two-level enhancement for possessing a dangerous weapon, and to the substantive reasonableness of his sentence, are encompassed by the waiver. See United States v. Martinez, 143 F.3d 1266, 1271 (9th Cir. 1998) (“When a plea agreement expressly waives a defendant's right to appeal a sentence, the waiver extends to an appeal based on an incorrect application of the sentencing guidelines.”). Furthermore, the record reflects that, during the change of plea hearing, the district court correctly advised McCullough as to the terms of the waiver and confirmed his understanding of those terms. See Fed. R. Crim. P. 11(b)(1)(N). Even assuming McCullough is correct that the court's description of the waiver at the subsequent sentencing hearing was ambiguous, the record makes clear that the court did not provide McCullough an unqualified advisement that he could appeal his sentence. See United States v. Arias-Espinosa, 704 F.3d 616, 620 (9th Cir. 2012) (oral advisement of the right to appeal vitiates written waiver only if oral advisement is made “unequivocally, clearly, and without qualification”). Finally, to the extent McCullough argues that his attorney provided ineffective assistance by failing to explain the waiver adequately, we do not reach that claim on direct appeal. See United States v. Rahman, 642 F.3d 1257, 1259-60 (9th Cir. 2011).

In light of the enforceable appeal waiver, we dismiss the appeal. See Watson, 582 F.3d at 988.

Counsel's motion to withdraw is GRANTED. McCullough's pro se motion for appointment of substitute counsel is DENIED.

DISMISSED.