United States v. Alberto Cortez-Sanchez

FILED
NOT FOR PUBLICATION MAR 21 2013

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. 12-10143

Plaintiff - Appellee, D.C. No. 4:11-cr-03698-RCC

v.
MEMORANDUM *
ALBERTO CORTEZ-SANCHEZ,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Arizona
Marvin E. Aspen, District Judge, Presiding **

Submitted March 12, 2013 ***

Before: PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges.

Alberto Cortez-Sanchez appeals from the district court’s judgment and

challenges his guilty-plea conviction and 24-month sentence for reentry after

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Marvin E. Aspen, Senior United States District Judge
for the Northern District of Illinois, sitting by designation.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
deportation, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386

U.S. 738 (1967), Cortez-Sanchez’s counsel has filed a brief stating that there are no

grounds for relief, along with a motion to withdraw as counsel of record. We have

provided Cortez-Sanchez the opportunity to file a pro se supplemental brief. No

pro se supplemental brief or answering brief has been filed.

Our independent review of the record pursuant to Penson v. Ohio, 488 U.S.

75, 80 (1988), discloses no arguable grounds for relief on direct appeal as to

Cortez-Sanchez’s conviction and custodial sentence. However, before

Cortez-Sanchez was sentenced, the Guidelines were amended to recommend

against the imposition of supervised release in cases where the defendant is likely

to be deported after imprisonment. See U.S.S.G. § 5D1.1(c) & cmt. n.5 (2011).

Because the record suggests that the district court did not consider section 5D1.1(c)

when it imposed supervised release in this case, we vacate Cortez-Sanchez’s 3-year

term of supervised release and remand for the district court to reconsider the

imposition of supervised release in light of that section.

Counsel’s motion to withdraw is GRANTED.

The government’s motion to strike a misfiled letter is GRANTED.

AFFIRMED, sentence VACATED in part, REMANDED.

2 12-10143