United States v. Jose Martinez , 518 F. App'x 559 ( 2013 )

FILED
NOT FOR PUBLICATION MAY 17 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10054
Plaintiff - Appellee, D.C. No. 5:10-cr-00390-DLJ
v.
MEMORANDUM *
JOSE MIGUEL MARTINEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
D. Lowell Jensen, District Judge, Presiding
Submitted May 14, 2013 **
Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.
Jose Miguel Martinez appeals from the district court’s judgment and
challenges his guilty-plea conviction and 120-month sentence for conspiracy to
possess with intent to distribute over 50 grams of methamphetamine, in violation
of 21 U.S.C. §§ 846 and 841(b)(1)(A)(viii); and possession with intent to distribute
*
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).
over 50 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(A)(viii). Pursuant to Anders v. California, 386 U.S. 738 (1967), Martinez’s
counsel has filed a brief stating that there are no grounds for relief, along with a
motion to withdraw as counsel of record. Martinez has filed a pro se supplemental
brief. The government has filed a motion to dismiss the appeal.
In his written plea agreement, Martinez waived his right to appeal his
conviction and sentence. Because the district court did not discuss Martinez’s
waiver of his right to appeal his conviction during the change of plea hearing,
however, we decline to enforce the waiver as to the conviction. See United States
v. Arellano-Gallegos, 387 F.3d 794, 796-97 (9th Cir. 2004). 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 Martinez’s conviction. We accordingly affirm
the conviction.
Because the record discloses no arguable issue as to the validity of the
sentencing waiver, we grant the government’s motion in part and dismiss
Martinez’s appeal as to his sentence. See United States v. Watson, 582 F.3d 974,
986-88 (9th Cir. 2009).
Counsel’s motion to withdraw is GRANTED.
AFFIRMED in part; DISMISSED in part.
2 12-10054