United States v. Jaime Beltran-Jimenez

538 F. App'x 789

Opinion

MEMORANDUM **

Jaime Beltran-Jimenez appeals from the district court’s judgment and challenges his bench-trial conviction and 35-month sentence for reentry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Beltran-Jimenez contends that the district court erred by denying his motion to dismiss the indictment. We review de novo the denial of a motion to dismiss a section 1326 indictment. See United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th Cir.2001).

Beltran-Jimenez argues that his state court conviction cannot support the deportation order underlying his current conviction because his counsel provided ineffective assistance in the state proceeding. Because Beltran-Jimenez had counsel in the state proceeding, he may not now collaterally attack his state court conviction. See United States v. Gutierrez-Cervantez, 132 F.3d 460, 462 (9th Cir.1997). Moreover, Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), is not retroactive. See Chaidez v. United States, — U.S.-, 133 S.Ct. 1103, 1113, 185 L.Ed.2d 149 (2013). Accordingly, the district court properly denied the motion to dismiss.

AFFIRMED.

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