United States of America v. Gabriel Diaz, a.k.a. Eightball, a.k.a. Ocho

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GABRIEL DIAZ, a.k.a. Eightball, a.k.a.
Ocho,
Defendant - Appellant.
No. 12-50117
D.C. No. 2:10-cr-00215-PSG
MEMORANDUM*
Appeal from the United States District Court
for Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted April 16, 2013**
Before: CANBY, IKUTA, and WATFORD, Circuit Judges.
Gabriel Diaz appeals from the district court’s judgment and challenges his
guilty-plea conviction and 240-month sentence for possession with intent to
distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(viii);
FILED
APR 23 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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12-50117 2
and use or carrying of a firearm during a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A). Pursuant to Anders v. California, 386 U.S. 738 (1967),
Diaz’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 Diaz the
opportunity to file a pro se supplemental brief. No pro se supplemental brief or
answering brief has been filed.
Diaz 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 five specified issues related to his sentence. 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 Diaz’s plea or any sentencing issue outside the scope of the
appeal waiver. We therefore affirm as to those issues. We dismiss the remainder
of the appeal in light of the valid appeal waivers. See United States v. Watson, 582
F.3d 974, 988 (9th Cir. 2009).
We remand to the district court with instructions to amend the judgment to
delete “Cocaine, Cocaine Base in the Form of Crack Cocaine,” and replace it with
“methamphetamine.”

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12-50117 3
Counsel’s motion to withdraw is GRANTED.
AFFIRMED in part; DISMISSED in part; REMANDED to correct the
judgment.

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