United States v. John Gomez
UNITED STATES of America, Plaintiff-Appellee, v. John Anthony GOMEZ, Defendant-Appellant
- Area
- other
- Panel
- Alfred T. Goodwin (author), William T. Wallace, Mary M. McKeown
Analysis
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Opinion
FILED NOT FOR PUBLICATION DEC 23 2011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. 10-50599 Plaintiff - Appellee, D.C. No. 3:10-cr-02409-JAH v. MEMORANDUM * JOHN ANTHONY GOMEZ, Defendant - Appellant.
Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding Submitted December 19, 2011 ** Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
John Anthony Gomez appeals from his guilty-plea convictions and 120- month sentence for importation of marijuana and methamphetamine and aiding and abetting in violation of 21 U.S.C. §§ 952 and 960 and 18 U.S.C. § 2. Pursuant to Anders v. California, 386 U.S. 738 (1967), Gomez’s counsel has filed a brief * 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). stating that there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided Gomez with the opportunity to file a pro se supplemental brief. No pro se supplemental brief has been filed. Appellee has filed a motion to dismiss.
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. We dismiss in light of the valid appeal waiver. See United States v. Nguyen, 235 F.3d 1179, 1182 (9th Cir. 2000).
However, the judgment does not conform to the oral pronouncement at sentencing because it includes a non-standard condition of supervised release which the district court did not include in the oral pronouncement. Because an unambiguous oral pronouncement of sentence controls over a written judgment, see United States v. Hicks, 997 F.2d 594, 597 (9th Cir. 1993), we remand for the limited purposed of correcting the clerical error. See Fed. R. Crim. P. 36.
Counsel’s motion to withdraw is GRANTED. Appellee’s motion to dismiss is DENIED AS MOOT.
DISMISSED; REMANDED.
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