                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 17 2013

                                                                        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. 12-10054

               Plaintiff - Appellee,             D.C. No. 5:10-cr-00390-DLJ

  v.
                                                 MEMORANDUM *
JOSE MIGUEL MARTINEZ,

               Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Northern District of California
                    D. Lowell Jensen, District Judge, Presiding

                              Submitted May 14, 2013 **

Before:        LEAVY, THOMAS, and MURGUIA, Circuit Judges.

       Jose Miguel Martinez appeals from the district court’s judgment and

challenges his guilty-plea conviction and 120-month sentence for conspiracy to

possess with intent to distribute over 50 grams of methamphetamine, in violation

of 21 U.S.C. §§ 846 and 841(b)(1)(A)(viii); and possession with intent to distribute

          *
             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).
over 50 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(A)(viii). Pursuant to Anders v. California, 386 U.S. 738 (1967), Martinez’s

counsel has filed a brief stating that there are no grounds for relief, along with a

motion to withdraw as counsel of record. Martinez has filed a pro se supplemental

brief. The government has filed a motion to dismiss the appeal.

      In his written plea agreement, Martinez waived his right to appeal his

conviction and sentence. Because the district court did not discuss Martinez’s

waiver of his right to appeal his conviction during the change of plea hearing,

however, we decline to enforce the waiver as to the conviction. See United States

v. Arellano-Gallegos, 387 F.3d 794, 796-97 (9th Cir. 2004). 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 Martinez’s conviction. We accordingly affirm

the conviction.

      Because the record discloses no arguable issue as to the validity of the

sentencing waiver, we grant the government’s motion in part and dismiss

Martinez’s appeal as to his sentence. See United States v. Watson, 582 F.3d 974,

986-88 (9th Cir. 2009).

      Counsel’s motion to withdraw is GRANTED.

      AFFIRMED in part; DISMISSED in part.


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