United States v. Edison Tortice ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 5 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10287
Plaintiff-Appellee, D.C. No. 3:19-cr-08077-SPL-1
v.
MEMORANDUM*
EDISON GICELA TORTICE, AKA Edison
Tortice,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Steven P. Logan, District Judge, Presiding
Submitted April 17, 2023**
Before: CLIFTON, R. NELSON, and BRESS, Circuit Judges.
Edison Gicela Tortice appeals from the district court’s judgment and
challenges his guilty-plea conviction and 293-month sentence for abusive sexual
contact of a child, in violation of 18 U.S.C. §§ 1153, 2244(a)(5), and 2246.
Pursuant to Anders v. California, 386 U.S. 738 (1967), Tortice’s counsel has filed
*
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).
a brief stating that there are no grounds for relief, along with a motion to withdraw
as counsel of record. We have provided Tortice the opportunity to file a pro se
supplemental brief. No pro se supplemental brief or answering brief has been
filed.
Tortice waived his right to appeal his conviction and 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
the appeal except as to Special Conditions 1 and 5, which we vacate and remand.
See United States v. Nishida, 53 F.4th 1144, 1151-55 (9th Cir. 2022); see also
Watson, 582 F.3d at 977 (an appeal waiver does not bar a constitutional challenge
to a supervised release condition). On remand, the district court must reevaluate
Special Conditions 1 and 5 in light of Nishida and the post-Nishida changes made
in the District of Arizona to these special conditions.
Counsel’s motion to withdraw is GRANTED.
DISMISSED in part; VACATED in part; and REMANDED with
instructions.
2 21-10287