United States v. Naba-Perez

140 F. App'x 690

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 4, 2005
• Docket: No. 04-10508; D.C. No. CR-03-02312-CKJ/JCC
• Status: Published

Opinion

MEMORANDUM

**

Lionel Naba-Perez appeals his conviction and 43-month sentence imposed following his guilty plea to one count of possession with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(l)(B)(vii).

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel for Naba-Perez has filed a brief stating that there are no grounds for relief, and a motion to withdraw as counsel of record. Naba-Perez has not filed a pro se supplemental brief. The government has not filed an answering brief.

Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no grounds for relief. We affirm the conviction.

The sentence is remanded for the district court to determine whether it would have sentenced Naba-Perez differently under the now-advisory federal sentencing guidelines. If so, the district court shall vacate Naba-Perez’ sentence and re-sentence him under the advisory Guidelines. If not, Naba-Perez’ sentence shall remain undisturbed. See United States v. Hermoso-Garcia, No. 04-30196, 2005 WL 1579507 at *3 (9th Cir. July 7, 2005).

Counsel’s motion to withdraw is denied.

Conviction AFFIRMED and Sentence REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.