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NOT FOR PUBLICATION DEC 23 2011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.
2 10-50599