United States of America v. MICHAEL ANTHONY SPENCER, AKA C Mike, AKA S Dog, AKA Short Dog, AKA Mark A. Spencer,…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL ANTHONY SPENCER, AKA C
Mike, AKA S Dog, AKA Short Dog, AKA
Mark A. Spencer, AKA Twin,
Defendant-Appellant.
No. 17-50303
D.C. No. 2:17-cr-00008-BRO-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Beverly Reid O'Connell, District Judge, Presiding
Submitted May 21, 2019**
Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.
Michael Anthony Spencer appeals from the district court’s judgment and
challenges his guilty-plea convictions and aggregate 147-month sentence for five
counts of armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), and one
* 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
MAY 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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count of brandishing a firearm in furtherance of and during and in relation to a
crime of violence, in violation of 18 U.S.C. § 924(c). Pursuant to Anders v.
California, 386 U.S. 738 (1967), Spencer’s counsel has filed a brief stating that
there are no grounds for relief, along with a motion to withdraw as counsel of
record. Spencer has filed a pro se supplemental brief and two motions for
appointment of new counsel, which contain further argument. The government has
moved to dismiss the appeal.
Spencer waived his right to appeal his convictions, with the exception of an
appeal based on a claim that his pleas were involuntary. Spencer also 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 grounds
for relief as to the voluntariness of Spencer’s pleas, the calculation of the criminal
history category, the restitution order, and those supervised release conditions that
fall outside the scope of the appellate waiver. We therefore affirm as to those
issues. With respect to the remaining issues, we GRANT the government’s
motion to dismiss the appeal except as to standard supervised release 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 United States v. Watson, 582 F.3d 974, 977 (9th Cir. 2009) (an appeal waiver
does not bar a constitutional challenge to a supervised release condition). We

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remand for the district court to modify these conditions consistent with our opinion
in Evans.
The district court ordered that restitution would be paid jointly and severally
with Spencer’s co-participants in district court case number 2:16-cr-00862-RHW.
Because the written judgment failed to include this directive, we remand to the
district court with instructions to correct the written judgment to conform to the
oral pronouncement. See United States v. Allen, 157 F.3d 661, 668 (9th Cir. 1998)
(in case of a direct conflict between unambiguous oral pronouncement of sentence
and written judgment, oral pronouncement controls).
We decline to address on direct appeal Spencer’s pro se claims of ineffective
assistance of trial and appellate counsel. See United States v. Rahman, 642 F.3d
1257, 1259-60 (9th Cir. 2011).
Counsel’s motion to withdraw is GRANTED. Spencer’s pro se motions for
appointment of new counsel are DENIED.
AFFIRMED in part; DISMISSED in part; REMANDED with
instructions.

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