United States v. Jose Valdez-Borrego , 460 F. App'x 628 ( 2011 )

FILED
NOT FOR PUBLICATION NOV 29 2011
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. 10-30340
Plaintiff - Appellee, D.C. No. 1:09-cr-00207-BLW
v.
MEMORANDUM *
JOSE JUAN VALDEZ-BORREGO,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief Judge, Presiding
Submitted November 21, 2011 **
Before: TASHIMA, BERZON, and TALLMAN, Circuit Judges.
Jose Juan Valdez-Borrego appeals from his guilty-plea conviction and 60-
month sentence for illegal reentry, in violation of 8 U.S.C. § 1326. Pursuant to
Anders v. California, 386 U.S. 738 (1967), Valdez-Borrego’s counsel has filed a
brief stating that there are no grounds for relief, along with a motion to withdraw
*
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).
as counsel of record. We have provided Valdez-Borrego with the opportunity to
file a pro se supplemental brief. A pro se supplemental brief and answering brief
have been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S.
75, 80-81 (1988), discloses no arguable grounds for relief on direct appeal.
Though Valdez-Borrego may be correct that the amended judgment should not
have been entered, see United States v. Aguilar-Reyes, 653 F.3d 1053, 1055-56
(9th Cir. 2011), the amendment had no effect on the length of his sentence.
Accordingly, even if the appeal waiver does not bar our consideration of the
amended judgment, there is no basis for relief. We decline to address Valdez-
Borrego’s claim of ineffective assistance of counsel on direct appeal as the record
is insufficiently developed and his legal representation was not so inadequate that
it can be concluded at this point that he obviously was denied his Sixth
Amendment right to counsel. See United States v. McKenna, 327 F.3d 830, 845
(9th Cir. 2003) (“Claims of ineffective assistance of counsel are generally
inappropriate on direct appeal.”). We dismiss Valdez-Borrego’s appeal of his
conviction and sentence in light of a valid appeal waiver. See United States v.
Nguyen, 235 F.3d 1179, 1182 (9th Cir. 2000).
Counsel’s motion to withdraw is GRANTED.
DISMISSED.
2 10-30340