United States v. Miguel Magana

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 12, 2018
• Docket: 17-50402
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 12 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50402

Plaintiff-Appellee, D.C. No. 2:17-cr-00261-RGK

v. MEMORANDUM* MIGUEL MAGANA, a.k.a. Face, a.k.a. Michael Magana, a.k.a. Tun Tun, a.k.a. W, a.k.a. Wicked,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Submitted July 10, 2018**

Before: CANBY, W. FLETCHER, and CALLAHAN, Circuit Judges.

Miguel Magana appeals from the district court’s judgment and challenges

the aggregate 144-month sentence imposed following his guilty-plea convictions

for conspiracy to possess with intent to distribute and to distribute

* 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). methamphetamine, in violation of 21 U.S.C. § 846; distribution of

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii); and two

counts of being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1). Pursuant to Anders v. California, 386 U.S. 738 (1967), Magana’s

counsel has filed a brief stating that there are no grounds for relief, along with a

motion to withdraw as counsel of record. We have provided Magana the

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

answering brief has been filed.

Magana 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 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

Magana’s appeal as to those aspects of his sentence that are covered by the waiver

and affirm as to all other issues except as to the three supervised release conditions,

standard conditions five, six, and fourteen, which are unconstitutionally vague.

See United States v. Evans, 883 F.3d 1154, 1162-64 (9th Cir. 2018); see also

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

to a supervised release condition). We remand for the district court to modify

these conditions consistent with our opinion in Evans.

2 17-50402 Counsel’s motion to withdraw is GRANTED.

AFFIRMED in part; DISMISSED in part; REMANDED with

instructions.

3 17-50402