NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 23 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10401

Plaintiff-Appellee, D.C. No. 2:17-cr-01110-DLR-1

v.

MEMORANDUM*

FANY MADRIGAL-LOPEZ, AKA Fanny Madrigal-Lopez,

Defendant-Appellant.

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). 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

2 18-10401 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.

3 18-10401