United States v. Edison Tortice

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 5, 2023
• Docket: 21-10287
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 5 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-10287

Plaintiff-Appellee, D.C. No. 3:19-cr-08077-SPL-1

v. MEMORANDUM* EDISON GICELA TORTICE, AKA Edison Tortice,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Steven P. Logan, District Judge, Presiding

Submitted April 17, 2023**

Before: CLIFTON, R. NELSON, and BRESS, Circuit Judges.

Edison Gicela Tortice appeals from the district court’s judgment and

challenges his guilty-plea conviction and 293-month sentence for abusive sexual

contact of a child, in violation of 18 U.S.C. §§ 1153, 2244(a)(5), and 2246.

Pursuant to Anders v. California, 386 U.S. 738 (1967), Tortice’s counsel has filed

* 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). a brief stating that there are no grounds for relief, along with a motion to withdraw

as counsel of record. We have provided Tortice the opportunity to file a pro se

supplemental brief. No pro se supplemental brief or answering brief has been

filed.

Tortice 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

(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 Special Conditions 1 and 5, which we vacate and remand.

See United States v. Nishida, 53 F.4th 1144, 1151-55 (9th Cir. 2022); see also

Watson, 582 F.3d at 977 (an appeal waiver does not bar a constitutional challenge

to a supervised release condition). On remand, the district court must reevaluate

Special Conditions 1 and 5 in light of Nishida and the post-Nishida changes made

in the District of Arizona to these special conditions.

Counsel’s motion to withdraw is GRANTED.

DISMISSED in part; VACATED in part; and REMANDED with

instructions.

2 21-10287