United States v. Brian Brewer

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                                                                             FILED
                           NOT FOR PUBLICATION
                                                                             SEP 21 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    16-10281

              Plaintiff-Appellee,                D.C. No.
                                                 2:15-cr-00301-HDM-VCF-1
 v.

BRIAN MICHAEL BREWER,                            MEMORANDUM*

              Defendant-Appellant.


                   Appeal from the United States District Court
                            for the District of Nevada
                  Howard D. McKibben, District Judge, Presiding

                          Submitted September 19, 2017**

Before: HUG, FARRIS, and CANBY, Circuit Judges.

      Brian Michael Brewer appeals from the district court’s judgment and

challenges his guilty-plea conviction and 210-month sentence for receipt of child

pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A), (b). Pursuant to Anders

v. California, 386 U.S. 738 (1967), Brewer’s counsel has filed a brief stating that

      *
             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).
there are no grounds for relief, along with a motion to withdraw as counsel.

Brewer has filed a pro se supplemental brief. No answering brief has been filed.

       With the exception of ineffective assistance of counsel claims, Brewer

waived his right to appeal his conviction and 210-month sentence. We decline to

review Brewer’s ineffective assistance of counsel claims on direct appeal. See

United States v. Rahman, 642 F.3d 1257, 1259-60 (9th Cir. 2011) (holding that we

review ineffective assistance of counsel claims on direct appeal only in the unusual

cases where the record is sufficiently developed or the legal representation is so

obviously inadequate that it denies a defendant his Sixth Amendment right to

counsel).

       The waiver of the right to appeal the restitution order is not enforceable

because, at the time Brewer waived the right to appeal the restitution order, he did

not receive a reasonably accurate estimate of the amount of restitution the court

would order him to pay. See United States v. Lo, 839 F.3d 777, 785 (9th Cir.

2016); United States v. Tsosie, 639 F.3d 1213, 1217-18 (9th Cir. 2011). We affirm

the restitution order.

       We dismiss the remainder of the appeal in light of the appeal waiver. See

United States v. Watson, 582 F.3d 974, 986-88 (9th Cir. 2009).

       Counsel’s motion to withdraw is GRANTED.


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AFFIRMED in part; DISMISSED in part.




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