United States v. Javier-Lopez

43 F. App'x 116

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 30, 2002
• Docket: No. 01-30399; D.C. No. CR-01-00074-WFN
• Status: Published

Opinion

MEMORANDUM

**

Antonio Javier-Lopez appeals his 37-month sentence for illegal re-entry following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.

Javier-Lopez first contends that the district court erred by including criminal history points based on prior state convictions where a court certified interpreter was not used during attorney-client meetings. Because Javier-Lopez’ challenge to his prior convictions is not based on a claim of a failure to appoint counsel for an indigent defendant, see Gideon v. Wainwright, 372 , 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), he cannot collaterally attack his prior convictions on this ground. See Custis v. United States, 511 U.S. 485, 490-97, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994) (holding that a defendant has no right to collaterally attack his prior convictions in federal sentencing proceedings, unless it is based on the denial of his right to have appointed counsel); United States v. Ricardo, 78 F.3d 1411, 1417 (9th Cir.1996) (recognizing that the Custis holding applies in cases involving sentence enhancements under the federal Sentencing Guidelines).

Javier-Lopez also contends that the court erred under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by sentencing him in excess of the statutory maximum sentence for § 1326(a), based on a prior conviction not alleged in the indictment. As Javier-Lopez concedes, this contention is foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir.2000), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001) (recognizing that “all prior convictions — not just those admitted on the record — were exempt from Apprendi ’s general rule and, under AlmendarezTorres, may continue to be treated as sentencing factors”) (emphasis in original).

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 Ninth Circuit Rule 36-3.