United States v. Ronald McCullough

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 25, 2021
• Docket: 20-30137
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 25 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-30137

Plaintiff-Appellee, D.C. No. 2:19-cr-00007-SMJ-1

v. MEMORANDUM* RONALD STEPHEN MCCULLOUGH,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Washington Salvador Mendoza, Jr., District Judge, Presiding

Submitted August 17, 2021**

Before: SILVERMAN, CHRISTEN, and LEE, Circuit Judges.

Ronald Stephen McCullough appeals from the district court’s judgment and

challenges his guilty-plea conviction and 108-month sentence for possession with

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

(b)(1)(B)(viii). Pursuant to Anders v. California, 386 U.S. 738 (1967),

* 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). McCullough’s counsel has filed a brief stating that there are no grounds for relief,

along with a motion to withdraw as counsel of record. McCullough has filed pro

se supplemental opening and reply briefs, and the government has filed an

answering brief.

McCullough 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), and the parties’ briefs, 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).

McCullough’s pro se challenges to the district court’s imposition of a two-level

enhancement for possessing a dangerous weapon, and to the substantive

reasonableness of his sentence, are encompassed by the waiver. See United States

v. Martinez, 143 F.3d 1266, 1271 (9th Cir. 1998) (“When a plea agreement

expressly waives a defendant’s right to appeal a sentence, the waiver extends to an

appeal based on an incorrect application of the sentencing guidelines.”).

Furthermore, the record reflects that, during the change of plea hearing, the district

court correctly advised McCullough as to the terms of the waiver and confirmed

his understanding of those terms. See Fed. R. Crim. P. 11(b)(1)(N). Even

assuming McCullough is correct that the court’s description of the waiver at the

subsequent sentencing hearing was ambiguous, the record makes clear that the

court did not provide McCullough an unqualified advisement that he could appeal

2 20-30137 his sentence. See United States v. Arias-Espinosa, 704 F.3d 616, 620 (9th Cir.

2012) (oral advisement of the right to appeal vitiates written waiver only if oral

advisement is made “unequivocally, clearly, and without qualification”). Finally,

to the extent McCullough argues that his attorney provided ineffective assistance

by failing to explain the waiver adequately, we do not reach that claim on direct

appeal. See United States v. Rahman, 642 F.3d 1257, 1259-60 (9th Cir. 2011).

In light of the enforceable appeal waiver, we dismiss the appeal. See

Watson, 582 F.3d at 988.

Counsel’s motion to withdraw is GRANTED. McCullough’s pro se motion

for appointment of substitute counsel is DENIED.

DISMISSED.

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