United States v. Miller-Kidd

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 27 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-1957 D.C. No. Plaintiff - Appellee, 3:22-cr-01143-GPC-3 v. MEMORANDUM* DANNY LAMAR MILLER-KIDD,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Gonzalo P. Curiel, District Judge, Presiding

Submitted January 22, 2025**

Before: CLIFTON, CALLAHAN, and BENNETT, Circuit Judges.

Danny Lamar Miller-Kidd appeals from the district court’s judgment and

challenges his guilty-plea convictions and 180-month sentence for conspiracy to

distribute controlled substances and distribution of controlled substances in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846.

* 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). Miller-Kidd’s counsel filed a brief under Anders v. California, 386 U.S. 738

(1967), stating that there are no non-frivolous arguments for appeal. Miller-Kidd

filed a pro se supplemental opening brief, to which the government responded by

filing a motion to dismiss pursuant to the appeal waiver in the plea agreement.

Our independent review of the record, see Penson v. Ohio, 488 U.S. 75, 80

(1988), discloses no non-frivolous issue as to whether the appeal waiver is

enforceable. See United States v. Watson, 582 F.3d 974, 986-88 (9th Cir. 2009).

We accordingly grant the government’s motion to dismiss the appeal as to all

issues except the 13 standard supervised release conditions included in the written

judgment, which the district court did not orally impose or incorporate by

reference. We vacate those conditions and remand for the limited purpose of

permitting the district court to reimpose them, after giving Miller-Kidd a chance to

object, in compliance with United States v. Montoya, 82 F.4th 640 (9th Cir. 2023)

(en banc), which was decided during the pendency of this appeal.

We do not reach on direct appeal Miller-Kidd’s pro se claim that he received

ineffective assistance of counsel. See United States v. Rahman, 642 F.3d 1257,

1259-60 (9th Cir. 2011).

Counsel’s motion to withdraw is denied without prejudice to renewal in

the district court.

DISMISSED in part; VACATED in part; and REMANDED.

2 23-1957