Opinion
No. 13-50451
05-18-2015
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ADAN OMANA ROCHA, a.k.a. Adan Omana, a.k.a. Adan Rocha Omana, Defendant - Appellant.
NOT FOR PUBLICATION
D.C. No. 8:13-cr-00023-JVS MEMORANDUM Appeal from the United States District Court for the Central District of California
James V. Selna, District Judge, Presiding
Before: LEAVY, CALLAHAN, and M. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Adan Omana Rocha appeals from the district court's judgment and challenges his guilty-plea conviction and 37-month sentence for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738 (1967), Rocha'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 Rocha the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Rocha waived his right to appeal his conviction, with the exception of an appeal based on a claim that his plea was involuntary. He also waived the right to appeal his sentence, with the exception of the court's calculation of his criminal history category. Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80 (1988), discloses no arguable grounds for relief as to the voluntariness of Rocha's plea or the criminal history category calculated by the court. We therefore affirm as to those issues. We dismiss the remainder of the appeal in light of the valid appeal waiver. See United States v. Watson, 582 F.3d 974, 988 (9th Cir. 2009).
In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir. 2000), we remand the case to the district court with instructions that it delete from the judgment the reference to 8 U.S.C. § 1326(b)(2). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to delete the reference to § 1326(b)(2)).
Counsel's motion to withdraw is GRANTED.
AFFIRMED in part; DISMISSED in part; REMANDED to correct the judgment.