United States v. Castro-Ramirez

27 F. App'x 759

Opinion

MEMORANDUM

**

Jose De Jesus Castro-Ramirez appeals his 74-month sentence imposed following a guilty plea conviction for illegally reentering the United States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm.

Castro-Ramirez contends that the district court improperly increased his sentence because: (1) Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) overruled Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (holding that a sentence may be enhanced based on a prior conviction that was not alleged in the indictment, admitted on the record or proved beyond a reasonable doubt); and (2) the district erred by failing to consider his collateral attack on the First Degree Rape conviction used to enhance his sentence. We disagree.

First, Castro-Ramirez’s Apprendi argument is foreclosed by our decision in United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001) (concluding on de novo review, that Apprendi did not overrule Almendarez-Torres). See also United States v. Pacheco-Zepeda, 234 F.3d 411, 414-15 (9th Cir.), cert. denied, 532 U.S. , 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001) (same, reviewing for plain error).

Second, the district court properly declined to consider Castro-Ramirez’s collateral attack on his first degree rape conviction used to enhance his federal sentence. See Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994) (prohibiting collateral attacks on prior state court convictions, unless defendant raises a Gideon¹ claim); United States v. Daniels, 195 F.3d 501, 502 (9th Cir.1999) (stating that Custis holding applies to sentencing proceedings in general), aff'd, 532 U.S. 374, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

1

. See Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).