United States v. Eddis Davenport

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 23, 2019
• Docket: 18-50097
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50097

Plaintiff-Appellee, D.C. No. 2:15-cr-00529-FMO-1

v. MEMORANDUM* EDDIS DAVENPORT, AKA E, AKA Bruce Allen Massey, AKA Cornyn McKinney, AKA Corwyn McKinney, AKA Kelvin Middleton, AKA Bruce Moss, AKA Michael Wise,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Fernando M. Olguin, District Judge, Presiding

Submitted May 21, 2019**

Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.

Eddis Davenport appeals from the district court’s judgment and challenges

his guilty-plea convictions and aggregate 67-month sentence for conspiracy to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 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

(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 (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, 139 S. Ct. 133

(2018); see also United States v. Watson, 582 F.3d 974, 977 (9th Cir. 2009) (an

2 18-50097 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.

3 18-50097