United States v. Jose Diaz , 594 F. App'x 354 ( 2015 )

FILED
NOT FOR PUBLICATION MAR 16 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50159
Plaintiff - Appellee, D.C. No. 8:13-cr-00154-JVS
v.
MEMORANDUM*
JOSE EDUVIGUES RODRIGUEZ DIAZ,
a.k.a. Jesus Martinez Diaz, a.k.a. Jesus
Manuel Rodriguez Diaz, a.k.a. Jose
Rodriguez, a.k.a. Fernando Quinones
Silva,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted March 10, 2015**
Before: FARRIS, WARDLAW, and PAEZ, Circuit Judges.
Jose Eduvigues Rodriguez Diaz appeals from the district court’s judgment
and challenges his guilty-plea conviction and 30-month sentence for being an
*
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).
illegal alien found in the United States following deportation, in violation of 8
U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738 (1967), Rodriguez
Diaz’s counsel has filed a brief stating that there are no grounds for relief, along
with a motion to withdraw as counsel of record. Rodriguez Diaz has filed a pro se
supplemental brief. The government has filed an answering brief.
Rodriguez Diaz waived his right to appeal his conviction, with the exception
of an appeal based on a claim that his guilty plea was involuntary. He also waived
the right to appeal his sentence, with the exception of the court’s calculation of his
criminal history category. 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 Rodriguez Diaz’s plea or the criminal history category
calculated by the court. We therefore affirm as to those issues. We dismiss the
remainder of the appeal in light of the valid appeal waiver. See United States v.
Watson, 582 F.3d 974, 988 (9th Cir. 2009).
We decline to review Rodriguez Diaz’s pro se ineffective assistance of
counsel claim on direct appeal because this is not one of the “unusual cases where
(1) the record on appeal is sufficiently developed to permit determination of the
issue, or (2) the legal representation is so inadequate that it obviously denies a
2 14-50159
defendant his Sixth Amendment right to counsel.” United States v. Rahman, 642
F.3d 1257, 1260 (9th Cir. 2011).
Counsel’s motion to withdraw is GRANTED.
Rodriguez Diaz’s motion for appointment of new counsel is DENIED.
AFFIRMED in part; DISMISSED in part.
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