United States of America v. FANY MADRIGAL-LOPEZ, AKA Fanny Madrigal-Lopez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FANY MADRIGAL-LOPEZ, AKA Fanny
Madrigal-Lopez,
Defendant-Appellant.
No. 18-10401
D.C. No. 2:17-cr-01110-DLR-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Submitted May 21, 2019**
Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.
Fany Madrigal-Lopez appeals from the district court’s judgment and
challenges her guilty-plea convictions and concurrent 144-month sentences for
conspiracy to possess with intent to distribute and to distribute a controlled
substance, and distribution of a controlled substance resulting in death, in violation
* 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
MAY 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 18-10401
of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), (b)(2), and 846. Pursuant to Anders v.
California, 386 U.S. 738 (1967), Madrigal-Lopez’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 Madrigal-Lopez the opportunity to file a pro se
supplemental brief. No pro se supplemental brief or answering brief has been
filed.
Madrigal-Lopez waived her right to appeal her conviction and 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 therefore dismiss the
appeal. See id. at 988.
However, the waiver cannot be applied to an unconstitutional supervised
release condition. See Watson, 582 F.3d at 977. Standard condition eight, which
prohibits Madrigal-Lopez from knowingly communicating or interacting with an
individual who has been convicted of a felony without first obtaining the
permission of the probation officer, infringes on Madrigal-Lopez’s “fundamental
right to familial association” with her children who have been convicted of felony
offenses, and thus implicates a “particularly significant liberty interest.” United
States v. Wolf Child, 699 F.3d 1082, 1087 (9th Cir. 2012). The district court did
not “follow an enhanced procedural requirement to make special findings on the

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record supported by evidence in the record, that the condition is necessary for
deterrence, protection of the public, or rehabilitation, and that it involves no greater
deprivation of liberty than reasonably necessary.” Id. We remand for the district
court to make the findings necessary to justify this condition as required by Wolf
Child or to reimpose the condition without making the necessary findings by
providing an exception for Madrigal-Lopez’s children.
To the extent that Madrigal-Lopez’s pro se notice of appeal raises a claim of
ineffective assistance of counsel, we decline to address this claim on direct appeal.
See United States v. Rahman, 642 F.3d 1257, 1259-60 (9th Cir. 2011).
Counsel’s motion to withdraw is GRANTED.
DISMISSED; REMANDED with instructions.

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