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United States v. Aguilar-Muniz

September 17, 1998

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
FRANCISCO AGUILAR-MUNIZ, DEFENDANT-APPELLANT.



D.C. No. CR-95-504 WBS

The opinion of the court was delivered by: D. Pregerson, District Judge

FOR PUBLICATION

Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding

Submitted March 9, 1998* San Francisco, California

Opinion by Judge D. Pregerson

SUMMARY

Appointed counsel for Francisco Aguilar-Muniz has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal and requesting leave to withdraw as counsel. Although notified of his right to respond to counsel's motion to withdraw, appellant has failed to respond. After consideration of the issues identified by counsel, and after an independent review of the record, we grant the motion to withdraw and affirm the decision below.

On November 9, 1995, Francisco Aguilar-Muniz ("Aguilar-Muniz") was indicted along with four co-defendants for conspiracy to manufacture methamphetamine in violation of 21 U.S.C. SS 846 and 841(a)(1). On June 4, 1996, Aguilar-Muniz waived indictment and pleaded guilty to a superseding information charging conspiracy to manufacture methamphetamine.

On June 27, 1996, the government moved to be relieved of its obligations under Aguilar-Muniz's plea agreement on the grounds that Aguilar-Muniz had not testified truthfully at the trial of co-defendant Jose Luis Buenrostro.

On August 15, 1996, Aguilar-Muniz waived his right to a hearing on the government's motion to withdraw the previous plea agreement, and pleaded guilty to a new superseding indictment charging possession of pseudoephedrine with knowledge that it would be used to manufacture methamphetamine in violation of 21 U.S.C. S 841(d)(2) and use of a telephone to facilitate conspiracy to manufacture methamphetamine in violation of 21 U.S.C. S 843(b).

Aguilar-Muniz was sentenced on October 30, 1996 to the statutory maximum of fourteen years imprisonment.

Aguilar-Muniz timely noticed this appeal on November 5, 1996. Attorney Kent Verne Anderson was appointed counsel on November 6, 1996. Anderson now moves to withdraw, and files a brief pursuant to Anders, asserting that there are no non-frivolous issues for appeal. As required by Anders, counsel has filed a brief identifying possible issues for appeal.

As part of the plea agreement, Aguilar-Muniz had waived the right to appeal his conviction. Counsel has identified two possible issues regarding the waiver of appeal: (1) Did the district court comply with Rule 11 of the Federal Rules of Criminal Procedure in taking the defendant's plea? (2) Did the district court mislead Aguilar-Muniz to believe that he had not waived the right to appeal?

The validity of a waiver of the right to appeal is reviewed de novo. See United States v. Petty, 80 F.3d 1384, 1386 (9th Cir. 1996); United States v. Buchanan, 59 F.3d 914, 916 (9th Cir. 1995); United ...


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