United States of America v. Victor Yovanny Avila Payan, a.k.a. Victor Avila

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VICTOR YOVANNY AVILA PAYAN,
a.k.a. Victor Avila,
Defendant - Appellant.
No. 13-50159
D.C. No. 2:13-cr-00060-RGK
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted March 10, 2014**
Before: PREGERSON, LEAVY, and MURGUIA, Circuit Judges.
Victor Yovanny Avila Payan appeals from the district court’s judgment and
challenges his guilty-plea conviction and the 27-month sentence imposed for being
an illegal alien found in the United States following deportation, in violation of 8
FILED
MAR 13 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

-- 1 of 2 --

U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738 (1967), Avila
Payan’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 Avila Payan
the opportunity to file a pro se supplemental brief. No pro se supplemental brief or
answering brief has been filed.
Avila Payan waived his right to appeal his conviction, with the exception of
an appeal based on a claim that his plea was involuntary. He also waived the right
to appeal his sentence, except as to the district court’s determination of his criminal
history category. 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 either
the validity of the plea or the criminal history category calculated by the court.
We, therefore, affirm as to those issues. We dismiss the remainder of the appeal in
light of the valid appeal waiver. See United States v. Watson, 582 F.3d 974, 988
(9th Cir. 2009).
Counsel’s motion to withdraw is GRANTED.
AFFIRMED in part; DISMISSED in part.
13-50159 2

-- 2 of 2 --