United States v. Michael Spencer

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 23, 2019
• Docket: 17-50303
• Status: Unpublished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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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. 17-50303

Plaintiff-Appellee, D.C. No. 2:17-cr-00008-BRO-1

v. MEMORANDUM* MICHAEL ANTHONY SPENCER, AKA C Mike, AKA S Dog, AKA Short Dog, AKA Mark A. Spencer, AKA Twin,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Beverly Reid O'Connell, District Judge, Presiding

Submitted May 21, 2019**

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

Michael Anthony Spencer appeals from the district court’s judgment and

challenges his guilty-plea convictions and aggregate 147-month sentence for five

counts of armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), and one

* 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). count of brandishing a firearm in furtherance of and during and in relation to a

crime of violence, in violation of 18 U.S.C. § 924(c). Pursuant to Anders v.

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

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

record. Spencer has filed a pro se supplemental brief and two motions for

appointment of new counsel, which contain further argument. The government has

moved to dismiss the appeal.

Spencer waived his right to appeal his convictions, with the exception of an

appeal based on a claim that his pleas were involuntary. Spencer also waived his

right to appeal most aspects of his sentence. 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 Spencer’s pleas, the calculation of the criminal

history category, the restitution order, and those supervised release conditions that

fall outside the scope of the appellate waiver. We therefore affirm as to those

issues. With respect to the remaining issues, we GRANT the government’s

motion to dismiss the appeal except as to standard supervised release 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 appeal waiver

does not bar a constitutional challenge to a supervised release condition). We

2 17-50303 remand for the district court to modify these conditions consistent with our opinion

in Evans.

The district court ordered that restitution would be paid jointly and severally

with Spencer’s co-participants in district court case number 2:16-cr-00862-RHW.

Because the written judgment failed to include this directive, we remand to the

district court with instructions to correct the written judgment to conform to the

oral pronouncement. See United States v. Allen, 157 F.3d 661, 668 (9th Cir. 1998)

(in case of a direct conflict between unambiguous oral pronouncement of sentence

and written judgment, oral pronouncement controls).

We decline to address on direct appeal Spencer’s pro se claims of ineffective

assistance of trial and appellate counsel. See United States v. Rahman, 642 F.3d

1257, 1259-60 (9th Cir. 2011).

Counsel’s motion to withdraw is GRANTED. Spencer’s pro se motions for

appointment of new counsel are DENIED.

AFFIRMED in part; DISMISSED in part; REMANDED with

instructions.

3 17-50303