United States v. Borquez

297 F. App'x 618

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 23, 2008
• Docket: No. 07-10284
• Status: Published

Opinion

MEMORANDUM

**

Johnny Carlos Borquez appeals from the 60-month sentence imposed following his guilty-plea conviction for possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(l)(B)(vii), and conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. § 846. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Borquez contends that the district court erred by including a prior state court conviction in the calculation of his criminal history score. In particular, Borquez contends that his counsel in state court had a conflict of interest, such that the state court conviction was obtained in violation of his rights under the Sixth Amendment and the Due Process Clause. However, because Borquez’s challenge to the prior conviction is not based on failure to appoint counsel under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), Borquez cannot collaterally attack his prior conviction at sentencing. See Custis v. United States, 511 U.S. 485, 496, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994); Clawson v. United States, 52 F.3d 806, 809 (9th Cir.1995) (“Following Custis, there is no constitutional right to collaterally challenge the constitutionality of a prior conviction [at sentencing] for any reason other than deprivation of the Gideon right to counsel.”).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.