United States of America v. Timothy J. Aubrey, a.k.a. Tim Aubrey, a.k.a. Timothy Joel Aubrey

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TIMOTHY J. AUBREY, a.k.a. Tim Aubrey,
a.k.a. Timothy Joel Aubrey,
Defendant-Appellant.
No. 18-50165
D.C. No. 8:13-cr-00167-JVS-2
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted February 19, 2019**
Before: FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges.
Timothy J. Aubrey appeals from the district court’s judgment and challenges
the 21-month sentence imposed following his guilty-plea conviction for mail fraud,
in violation of 18 U.S.C. § 1341. Pursuant to Anders v. California, 386 U.S. 738
(1967), Aubrey’s counsel has filed a brief stating that there are no grounds for
* 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).
FILED
FEB 21 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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relief, along with a motion to withdraw as counsel of record. We have provided
Aubrey the opportunity to file a pro se supplemental brief. No pro se supplemental
brief or answering brief has been filed.
Aubrey waived his right to appeal most aspects of his sentence. Our
independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80
(1988), discloses no arguable issue as to the validity of the waiver. See United
States v. Watson, 582 F.3d 974, 986-88 (9th Cir. 2009). We accordingly dismiss
those aspects of Aubrey’s sentencing appeal that are covered by the waiver and
affirm as to all other issues, with the exception of three supervised release
conditions—standard conditions five, six, and fourteen—which are
unconstitutionally vague. See United States v. Evans, 883 F.3d 1154, 1162-64 (9th
Cir.), cert. denied, 139 S. Ct. 133 (2018); see also Watson, 582 F.3d at 977 (an
appeal waiver does not bar a constitutional challenge to a supervised release
condition). We remand for the district court to modify these conditions consistent
with our opinion in Evans.
Counsel’s motion to withdraw is GRANTED.
AFFIRMED in part; DISMISSED in part; REMANDED with
instructions.

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