United States of America v. David Lee Frater

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID LEE FRATER,
Defendant-Appellant.
No. 16-10289
D.C. No. 2:14-cr-01517-DGC
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Submitted August 15, 2018**
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
David Lee Frater appeals from the district court’s judgment and challenges
his guilty-plea conviction and 125-month sentence for possession of child
pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2) and 2256.
Pursuant to Anders v. California, 386 U.S. 738 (1967), Frater’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
AUG 27 2018
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. Frater has filed a pro se supplemental brief and several
motions to supplement that brief, which we grant. The Clerk shall file the
supplemental brief submitted at Docket Entry No. 47. To the extent Frater moves
to strike counsel’s brief and proceed pro se, we deny the motion. However, we
have considered all of his Frater’s filings. The government has not filed an
answering brief. Accordingly, we deny as moot Frater’s motion regarding the due
date for the answering brief.
Frater waived his right to appeal his 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). Contrary to Frater’s pro se
argument, the record reflects that his plea was knowing and voluntary, and his
motion to withdraw his guilty plea is covered by the appeal waiver. See United
States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011). To the extent Frater
argues that his plea was the result of ineffective assistance of counsel, we decline
to reach that issue on direct appeal. See id. at 1259-60. We accordingly dismiss
the appeal, with the exception of two supervised release conditions, special
conditions of supervised release four and eight in the written judgment, which
contain restrictions that were not included in the court’s oral pronouncement of

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sentence. See United States v. Jones, 696 F.3d 932, 937-38 (9th Cir. 2012) (where
there is a direct conflict between an unambiguous oral pronouncement of sentence
and written judgment, the oral pronouncement controls); see also Watson, 582 F.3d
at 977 (an appeal waiver does not bar a constitutional challenge to a supervised
release condition). On remand, the district court shall strike the second sentence
from special condition number four, which states: “You shall not possess, view, or
otherwise use any other material that is sexually stimulating, sexually oriented, or
deemed to be inappropriate by the probation officer and/or treatment provider.” In
addition, the court shall strike from special condition of supervised release number
eight the restriction that Frater not work “with a vulnerable population (i.e. elderly
or physically or mentally handicapped).”
Frater’s request that counsel be relieved and counsel’s motions to withdraw
are GRANTED.
DISMISSED; REMANDED with instructions.

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