United States v. Miguel Sotelo

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 22 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-10012

Plaintiff-Appellee, D.C. No. 2:14-cr-00113-KJM-DB-1

v. MEMORANDUM* MIGUEL SOTELO,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, District Judge, Presiding

Submitted August 15, 2023**

Before: TASHIMA, S.R. THOMAS, and FORREST, Circuit Judges.

Miguel Sotelo appeals from the district court’s judgment and challenges his

guilty-plea conviction and 132-month sentence for possession with intent to

distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Pursuant to

Anders v. California, 386 U.S. 738 (1967), Sotelo’s counsel has filed a brief stating

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

record. We have provided Sotelo the opportunity to file a pro se supplemental

brief. No pro se supplemental brief or answering brief has been filed.

Sotelo 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. See United

States v. Watson, 582 F.3d 974, 986-88 (9th Cir. 2009). We accordingly dismiss

the appeal, with the exception of standard conditions 4, 5, and 13, 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 (appeal waiver does not bar a

constitutional challenge to a supervised release condition). We remand for the

district court to strike or modify these conditions consistent with our opinion in

Evans. See United States v. Ped, 943 F.3d 427, 434 (9th Cir. 2019).

Counsel’s motion to withdraw is GRANTED.

DISMISSED; REMANDED with instructions.

2 23-10012