United States v. Carlos Cedano-Perez

544 F. App'x 728

Opinion

MEMORANDUM **

Defendant-Appellant Carlos Cedano-Perez appeals his below-guidelines 46-month sentence following a conditional guilty plea to illegal reentry into the United States after deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Cedano-Perez contends that the district court erred in applying a 16-level increase for a prior crime of violence, under U.S.S.G. § 2L1.2(b)(l)(A)(ii), based upon Cedano-Perez’s 2000 Nevada conviction for battery with substantial bodily harm. Cedano-Perez contends that he is actually innocent of the Nevada offense, and that he received ineffective assistance of counsel. Absent denial of right to counsel, Cedano-Perez misunderstands the power of our court to review his Nevada conviction. See Daniels v. United States, 532 U.S. 374, 376, 121 S.Ct. 1578, 1580, 149 L.Ed.2d 590 (2001) (prohibiting collateral attack of prior state conviction in 28 U.S.C. § 2255 proceeding); Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994) (prohibiting collateral attack of prior state conviction at federal sentencing proceeding). As Cedano-Perez had counsel during his state court criminal proceedings, the district court appropriately concluded that Cedano-Perez could not collaterally attack his Nevada conviction at his federal sentencing. 1 See United States v. Martinez-Martinez, 295 F.3d 1041, 1044-45 (9th Cir.2002); United States v. Gutierrez-Cervantez, 132 F.3d 460, 462 (9th Cir.1997).

AFFIRMED.

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

1 . We do not consider here whether Cedano-Perez could challenge his state conviction under 28 U.S.C. § 2255 as a "rare case[]” in which there was previously no available channel of review due to "no fault of his own.” See Daniels, 532 U.S. at 376, 121 S.Ct. 1578.