United States v. Bobby Seely, Jr. ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 10 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10158
Plaintiff-Appellee, D.C. No. 2:20-cr-00643-DLR-1
v.
MEMORANDUM*
BOBBY LEE SEELY, Jr., AKA Bobby
Seely, Jr., AKA Bobby Lee Seely-Bey,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Submitted June 26, 2023**
Before: CANBY, S.R. THOMAS, and CHRISTEN, Circuit Judges.
Bobby Lee Seely, Jr. appeals from the district court’s judgment and
challenges the 80-month sentence imposed following his guilty-plea conviction for
making a false statement in connection with attempting to acquire a firearm, in
violation of 18 U.S.C. § 922(a)(6). Pursuant to Anders v. California, 386 U.S. 738*
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).
(1967), Seely’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 Seely the
opportunity to file a pro se supplemental brief. No pro se supplemental brief or
answering brief has been filed.
Seely waived his right to appeal his conviction and sentence. Our
independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81
(1988), discloses no arguable grounds 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 supervised release special conditions 3 and 5, which
involve an unconstitutional delegation of authority under United States v. Nishida,
53 F.4th 1144, 1151-55 (9th Cir. 2022). In view of this decision, and the
government’s letter stating that it does not “oppose vacatur and remand of Special
Conditions #3 and #5 . . . to permit the district court to impose the District of
Arizona’s post-Nishida conditions,” we vacate special conditions 3 and 5 and
remand for the district court to modify them in a manner consistent with Nishida.
Counsel’s motion to withdraw is GRANTED.
DISMISSED in part; VACATED in part; and REMANDED with
instructions.
2 22-10158