United States v. Eloy Gutierrez-Barba

FILED NOT FOR PUBLICATION JUL 26 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 09-10287 Plaintiff - Appellee, D.C. No. 4:09-cr-00395-CKJ v. MEMORANDUM * ELOY GUTIERREZ-BARBA, Defendant - Appellant. Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding Submitted June 29, 2010 ** Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges. Eloy Gutierrez-Barba appeals from his guilty-plea conviction and 43-month sentence for attempted illegal re-entry after deportation, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738 (1967), Gutierrez-Barba’s counsel has filed a brief stating there are no grounds for relief, along with a motion * 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). to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. We construe Gutierrez-Barba’s letter, dated January 6, 2010, as a pro se supplemental brief. No answering brief has been filed. Gutierrez-Barba’s motion for appointment of counsel and “Petition for Order Directing Attorney of Record to Surrender Defense Files” and the government’s motion for summary affirmance are denied. 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. Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED. 2 09-10287