                                                                           FILED
                            NOT FOR PUBLICATION                                APR 25 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-50616

               Plaintiff - Appellee,             D.C. No. 2:08-cr-00559-VBF

  v.
                                                 MEMORANDUM *
XAVIER FRANKLIN, a.k.a. Zaybo,

               Defendant - Appellant.



                   Appeal from the United States District Court
                        for the Central District of California
                  Valerie Baker Fairbank, District Judge, Presiding

                             Submitted April 17, 2012 **

Before:        LEAVY, PAEZ, and BEA, Circuit Judges.

       Xavier Franklin appeals from his guilty-plea conviction and

240-month sentence for distribution of cocaine base in the form of crack cocaine,

in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii). Pursuant to Anders v.




          *
             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).
California, 386 U.S. 738 (1967), Franklin’s counsel has filed a brief stating there

are no grounds for relief, along with a motion to withdraw as counsel of record.

We have provided Franklin the opportunity to file a pro se supplemental brief. No

pro se supplemental brief or answering brief has been filed.

      Franklin waived his right to appeal his sentence with the exception of the

court’s calculation of his criminal history category and the imposition of conditions

of supervised release. Our independent review of the record pursuant to Penson v.

Ohio, 488 U.S. 75, 80-81 (1988), discloses no arguable grounds for relief as to

Franklin’s conviction and indicates that the appeal waiver is operative.

Accordingly, we affirm Franklin’s conviction and dismiss the appeal of the

sentence in part. See United States v. Nguyen, 235 F.3d 1179, 1182 (9th Cir.

2000). With regard to the court’s calculation of the criminal history category and

its imposition of conditions of supervised release, our independent review of the

record discloses no arguable grounds for relief on direct appeal, and we affirm.

      Counsel’s motion to withdraw is GRANTED.

      The conviction is AFFIRMED, and the appeal of the sentence is

DISMISSED in part and AFFIRMED in part.




                                          2                                    10-50616
