United States v. Miguel Magana ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 12 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50402
Plaintiff-Appellee, D.C. No. 2:17-cr-00261-RGK
v.
MEMORANDUM*
MIGUEL MAGANA, a.k.a. Face, a.k.a.
Michael Magana, a.k.a. Tun Tun, a.k.a. W,
a.k.a. Wicked,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted July 10, 2018**
Before: CANBY, W. FLETCHER, and CALLAHAN, Circuit Judges.
Miguel Magana appeals from the district court’s judgment and challenges
the aggregate 144-month sentence imposed following his guilty-plea convictions
for conspiracy to possess with intent to distribute and to distribute
*
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).
methamphetamine, in violation of 21 U.S.C. § 846; distribution of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii); and two
counts of being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). Pursuant to Anders v. California, 386 U.S. 738 (1967), Magana’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 Magana the
opportunity to file a pro se supplemental brief. No pro se supplemental brief or
answering brief has been filed.
Magana waived his right to appeal most aspects of his 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
Magana’s appeal as to those aspects of his sentence that are covered by the waiver
and affirm as to all other issues except as to the three supervised release conditions,
standard conditions five, six, and fourteen, 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 (an appeal waiver does not bar a constitutional challenge
to a supervised release condition). We remand for the district court to modify
these conditions consistent with our opinion in Evans.
2 17-50402
Counsel’s motion to withdraw is GRANTED.
AFFIRMED in part; DISMISSED in part; REMANDED with
instructions.
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