United States of America v. Wayne Tan

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WAYNE TAN,
Defendant-Appellant.
No. 22-10308
D.C. No. 3:20-cr-08097-SMB-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Susan M. Brnovich, District Judge, Presiding
Submitted May 16, 2023**
Before: BENNETT, MILLER, and VANDYKE, Circuit Judges.
Wayne Tan appeals from the district court’s judgment and challenges the
121-month sentence imposed following his guilty-plea conviction for aggravated
sexual abuse of a child, in violation of 18 U.S.C. §§ 1152, 2241(c), and
2246(2)(B). Pursuant to Anders v. California, 386 U.S. 738 (1967), Tan’s counsel
* 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 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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 Tan the opportunity to file a pro
se supplemental brief. No pro se supplemental brief or answering brief has been
filed.
Tan waived his right to appeal his conviction and 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 the appeal except as to
supervised release special conditions 2, 5, and 9. Although the government elected
not to file an answering brief, it filed a letter stating that it would not “oppose
vacatur and remand of Special Conditions #2 and #5 . . . to permit the district court
to impose the District of Arizona’s post-Nishida conditions.” In view of this
position, we vacate special conditions 2 and 5 and remand for the district court to
modify these conditions in a manner consistent with United States v. Nishida, 53
F.4th 1144, 1151-55 (9th Cir. 2022). We also vacate and remand special condition
9 so the district court may reevaluate this condition in light of Nishida.
Counsel’s motion to withdraw is GRANTED.
DISMISSED in part; VACATED in part; and REMANDED with
instructions.

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