United States v. Mallett

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 4 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 23-418 D.C. No. 2:02-cr-00416-TLN-AC-1 Plaintiff - Appellee, v. MEMORANDUM* DAWANE ARTHUR MALLETT, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of California Troy L. Nunley, District Judge, Presiding Submitted February 21, 2024** Before: FERNANDEZ, NGUYEN, and OWENS, Circuit Judges. Dawane Arthur Mallett appeals from the district court’s amended judgment imposing a reduced sentence of 294 months following the court’s order granting Mallett’s 28 U.S.C. § 2255 motion and vacating Mallett’s two 18 U.S.C. § 924(c) convictions. Pursuant to Anders v. California, 386 U.S. 738 (1967), Mallett’s * 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). counsel has filed a brief stating that there are no grounds for relief, along with a motion to withdraw as counsel of record. Mallett has filed two pro se supplemental briefs, and the government has filed an answering brief, to which Mallett filed a reply. Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80 (1988), discloses no arguable grounds for relief on direct appeal. The district court did not abuse its discretion in correcting the sentence only as to the vacated § 924(c) counts and declining to conduct a full resentencing on the remaining counts. See Troiano v. United States, 918 F.3d 1082, 1086-88 (9th Cir. 2019). Mallett’s pro se challenges to the corrected sentence are without merit, and his challenges to his other counts of conviction are beyond the scope of this appeal. Counsel’s motion to withdraw is GRANTED. AFFIRMED. 2 23-418