                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 26 2014

                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS

                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50236

               Plaintiff - Appellee,             D.C. No. 2:10-cr-00862-PSG

  v.
                                                 MEMORANDUM*
WAHID SHABAZZ, a.k.a. Bryron
McGee, Sr., a.k.a. Quick,

               Defendant - Appellant.


                    Appeal from the United States District Court
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding

                           Submitted November 18, 2014**

Before:        LEAVY, FISHER, and N.R. SMITH, Circuit Judges.

       Wahid Shabazz appeals from the district court’s judgment and challenges his

guilty-plea conviction and 60-month sentence for distribution of cocaine base in

the form of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii).

Pursuant to Anders v. California, 386 U.S. 738 (1967), Shabazz’s counsel has filed

          *
             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).
a brief stating that there are no grounds for relief, along with a motion to withdraw

as counsel of record. Shabazz has filed a pro se supplemental brief, and the

government has moved to dismiss.

      Shabazz waived his right to appeal his conviction, with the exception of an

appeal based on a claim that his plea was involuntary. 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 the voluntariness of Shabazz’s plea or as to the

validity of the waiver; therefore, we affirm as to the voluntariness issue and

otherwise dismiss Shabazz’s challenge to his conviction, see United States v.

Watson, 582 F.3d 974, 986-88 (9th Cir. 2009).

      Shabazz also waived the right to appeal his sentence if the sentence imposed

was 60 months. Because there is no arguable issue as to the validity of the

sentencing waiver, see id., we dismiss Shabazz’s appeal of his sentence except with

respect to a special condition of supervised release. The portion of special

condition 10 prohibiting Shabazz from associating with “persons associated with

the ‘Pasadena Denver Lanes’ gang” is unconstitutional, see United States v.

Johnson, 626 F.3d 1085, 1091 (9th Cir. 2010), and a challenge to the

constitutionality of that condition is not subject to waiver, see United States v.

Bibler, 495 F.3d 621, 624 (9th Cir. 2007). We, accordingly, vacate that portion of


                                           2                                     13-50236
the judgment and remand to the district court for the limited purpose of considering

whether substitute language would be appropriate. See Johnson, 626 F.3d at 1091.

On remand, the district court shall also delete the language in the judgment

indicating that Shabazz was convicted of “possession with the intent to distribute”

cocaine base.

      Counsel’s motion to withdraw is GRANTED.

      All other pending motions are denied.

      AFFIRMED in part; DISMISSED in part; VACATED and

REMANDED in part.




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