United States v. Jose Valdez-Borrego

460 F. App'x 628

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 29, 2011
• Docket: 10-30340
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION NOV 29 2011

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 10-30340

Plaintiff - Appellee, D.C. No. 1:09-cr-00207-BLW

v. MEMORANDUM * JOSE JUAN VALDEZ-BORREGO,

Defendant - Appellant.

Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief Judge, Presiding

Submitted November 21, 2011 **

Before: TASHIMA, BERZON, and TALLMAN, Circuit Judges.

Jose Juan Valdez-Borrego appeals from his guilty-plea conviction and 60-

month sentence for illegal reentry, in violation of 8 U.S.C. § 1326. Pursuant to

Anders v. California, 386 U.S. 738 (1967), Valdez-Borrego’s counsel has filed a

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

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). as counsel of record. We have provided Valdez-Borrego with the opportunity to

file a pro se supplemental brief. A pro se supplemental brief and answering brief

have been filed.

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

75, 80-81 (1988), discloses no arguable grounds for relief on direct appeal.

Though Valdez-Borrego may be correct that the amended judgment should not

have been entered, see United States v. Aguilar-Reyes, 653 F.3d 1053, 1055-56

(9th Cir. 2011), the amendment had no effect on the length of his sentence.

Accordingly, even if the appeal waiver does not bar our consideration of the

amended judgment, there is no basis for relief. We decline to address Valdez-

Borrego’s claim of ineffective assistance of counsel on direct appeal as the record

is insufficiently developed and his legal representation was not so inadequate that

it can be concluded at this point that he obviously was denied his Sixth

Amendment right to counsel. See United States v. McKenna, 327 F.3d 830, 845

(9th Cir. 2003) (“Claims of ineffective assistance of counsel are generally

inappropriate on direct appeal.”). We dismiss Valdez-Borrego’s appeal of his

conviction and sentence in light of a valid appeal waiver. See United States v.

Nguyen, 235 F.3d 1179, 1182 (9th Cir. 2000).

Counsel’s motion to withdraw is GRANTED.

DISMISSED.

2 10-30340