United States v. Wahid Shabazz , 585 F. App'x 714 ( 2014 )

FILED
NOT FOR PUBLICATION NOV 26 2014
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50236
Plaintiff - Appellee, D.C. No. 2:10-cr-00862-PSG
v.
MEMORANDUM*
WAHID SHABAZZ, a.k.a. Bryron
McGee, Sr., a.k.a. Quick,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted November 18, 2014**
Before: LEAVY, FISHER, and N.R. SMITH, Circuit Judges.
Wahid Shabazz appeals from the district court’s judgment and challenges his
guilty-plea conviction and 60-month sentence for distribution of cocaine base in
the form of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii).
Pursuant to Anders v. California, 386 U.S. 738 (1967), Shabazz’s counsel has filed
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
a brief stating that there are no grounds for relief, along with a motion to withdraw
as counsel of record. Shabazz has filed a pro se supplemental brief, and the
government has moved to dismiss.
Shabazz waived his right to appeal his conviction, with the exception of an
appeal based on a claim that his plea was involuntary. 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 Shabazz’s plea or as to the
validity of the waiver; therefore, we affirm as to the voluntariness issue and
otherwise dismiss Shabazz’s challenge to his conviction, see United States v.
Watson, 582 F.3d 974, 986-88 (9th Cir. 2009).
Shabazz also waived the right to appeal his sentence if the sentence imposed
was 60 months. Because there is no arguable issue as to the validity of the
sentencing waiver, see id., we dismiss Shabazz’s appeal of his sentence except with
respect to a special condition of supervised release. The portion of special
condition 10 prohibiting Shabazz from associating with “persons associated with
the ‘Pasadena Denver Lanes’ gang” is unconstitutional, see United States v.
Johnson, 626 F.3d 1085, 1091 (9th Cir. 2010), and a challenge to the
constitutionality of that condition is not subject to waiver, see United States v.
Bibler, 495 F.3d 621, 624 (9th Cir. 2007). We, accordingly, vacate that portion of
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the judgment and remand to the district court for the limited purpose of considering
whether substitute language would be appropriate. See Johnson, 626 F.3d at 1091.
On remand, the district court shall also delete the language in the judgment
indicating that Shabazz was convicted of “possession with the intent to distribute”
cocaine base.
Counsel’s motion to withdraw is GRANTED.
All other pending motions are denied.
AFFIRMED in part; DISMISSED in part; VACATED and
REMANDED in part.
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