NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 7 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-50216

Plaintiff-Appellee, D.C. No. 3:16-cr-00374-W-1 v.

MEMORANDUM* GABRIEL RODRIGUEZ-RODRIGUEZ,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of California

Thomas J. Whelan, District Judge, Presiding

Submitted February 4, 2020** Before: FERNANDEZ, SILVERMAN, and TALLMAN, Circuit Judges.

Gabriel Rodriguez-Rodriguez appeals from the district court’s judgment and challenges his guilty-plea conviction and 37-month sentence for being a removed alien found in the United States, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738 (1967), Rodriguez-Rodriguez’s counsel has

*

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 a brief stating that there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided Rodriguez-Rodriguez the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.

Rodriguez-Rodriguez entered into a plea agreement that contained an appeal waiver. We decline to enforce the waiver, however, because the district court failed to advise Rodriguez-Rodriguez of the waiver during the change-of-plea hearing, in violation of Federal Rule of Criminal Procedure 11(b)(1)(N). See United States v. Arellano-Gallegos, 387 F.3d 794, 797 (9th Cir. 2004).

Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80 (1988), discloses no arguable grounds for relief on direct appeal.

Counsel’s motion to withdraw is GRANTED.

AFFIRMED.

2 19-50216