United States of America v. SIMON GUTIERREZ-CORTEZ, AKA Juan Miguel Menchaco-Lopez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SIMON GUTIERREZ-CORTEZ, AKA Juan
Miguel Menchaco-Lopez,
Defendant-Appellant.
No. 18-50259
D.C. No. 3:17-cr-01652-LAB-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted November 18, 2019**
Before: CANBY, TASHIMA, and CHRISTEN, Circuit Judges.
Simon Gutierrez-Cortez appeals from the district court’s judgment and
challenges the 42-month sentence imposed following his guilty-plea conviction for
attempted reentry of a removed alien, in violation of 8 U.S.C. § 1326. Pursuant to
Anders v. California, 386 U.S. 738 (1967), Gutierrez-Cortez’s counsel has filed a
* 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
NOV 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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brief stating that there are no grounds for relief, along with a motion to withdraw
as counsel of record. Gutierrez-Cortez has filed a pro se supplemental brief, and
the government has filed an answering brief.
Gutierrez-Cortez waived his right to appeal 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 the appeal except as to
standard conditions four, five, and thirteen, 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 vacate supervised
release conditions four, five, and thirteen and remand to the district court with
instructions to impose whatever alternative conditions it deems appropriate.
Counsel’s motion to withdraw is GRANTED.
DISMISSED in part; VACATED in part; REMANDED with
instructions.

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