United States v. Johnny Moore

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 8, 2020
• Docket: 18-10077
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 8 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10077

Plaintiff-Appellee, D.C. No. 2:15-cr-00226-GMN-PAL-1 v.

JOHNNY MOORE, AKA John Moore, Jr., MEMORANDUM* AKA Steve,

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, District Judge, Presiding

Submitted June 2, 2020**

Before: LEAVY, PAEZ, and BENNETT, Circuit Judges.

Johnny Moore appeals from the district court’s judgment and challenges his

guilty-plea conviction and 36-month sentence for interstate travel in aid of

unlawful activity, in violation of 18 U.S.C. § 1952(a)(3)(A). Pursuant to Anders v.

California, 386 U.S. 738 (1967), Moore’s counsel has filed a brief stating that

* 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). there are no grounds for relief, along with a motion to withdraw as counsel of

record. After striking Moore’s pro se supplemental opening brief, we provided

him an opportunity to file a new pro se brief, which he has not done. No

answering brief has been filed.

Moore 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, except that the

waiver is unenforceable as to the restitution order because Moore was not provided

with any estimate of the restitution amount in his plea agreement. See United

States v. Tsosie, 639 F.3d 1213, 1217-18 (9th Cir. 2011). Nonetheless, our

independent review of the record discloses no arguable grounds for relief as to the

uncontested restitution order. We accordingly affirm the restitution order. We

dismiss the remainder of the appeal in light of the valid appeal waiver. See United

States v. Watson, 582 F.3d 974, 988 (9th Cir. 2009).

In trial counsel’s motion to withdraw as counsel on appeal, which this court

previously granted, she indicated that Moore wished to appeal on the ground that

she provided ineffective assistance by failing to advise him of the possibility that

he would be required to register as a sex offender. Assuming trial counsel’s

assertion is correct, such a claim cannot be addressed on direct appeal. See United

States v. Rahman, 642 F.3d 1257, 1259-60 (9th Cir. 2011).

2 18-10077 Counsel’s motion to withdraw is GRANTED.

Within 7 days after the date of this disposition, former counsel must serve

this disposition on Moore individually and provide this court with proof of such

service.

AFFIRMED in part; DISMISSED in part.

3 18-10077