United States v. Gabriel Rodriguez-Rodriguez

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 7, 2020
• Docket: 19-50216
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 7 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50216

Plaintiff-Appellee, D.C. No. 3:16-cr-00374-W-1

v. MEMORANDUM* GABRIEL RODRIGUEZ-RODRIGUEZ,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Thomas J. Whelan, District Judge, Presiding

Submitted February 4, 2020**

Before: FERNANDEZ, SILVERMAN, and TALLMAN, Circuit Judges.

Gabriel Rodriguez-Rodriguez appeals from the district court’s judgment and

challenges his guilty-plea conviction and 37-month sentence for being a removed

alien found in the United States, in violation of 8 U.S.C. § 1326. Pursuant to

Anders v. California, 386 U.S. 738 (1967), Rodriguez-Rodriguez’s counsel has

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

withdraw as counsel of record. We have provided Rodriguez-Rodriguez the

opportunity to file a pro se supplemental brief. No pro se supplemental brief or

answering brief has been filed.

Rodriguez-Rodriguez entered into a plea agreement that contained an appeal

waiver. We decline to enforce the waiver, however, because the district court

failed to advise Rodriguez-Rodriguez of the waiver during the change-of-plea

hearing, in violation of Federal Rule of Criminal Procedure 11(b)(1)(N). See

United States v. Arellano-Gallegos, 387 F.3d 794, 797 (9th Cir. 2004).

Our independent review of the record pursuant to Penson v. Ohio, 488 U.S.

75, 80 (1988), discloses no arguable grounds for relief on direct appeal.

Counsel’s motion to withdraw is GRANTED.

AFFIRMED.

2 19-50216