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United States v. Gaston Ortiz-Ortiz

Court of Appeals for the Ninth Circuit · 10-50547 · 2011-10-05 · Unpublished

UNITED STATES of America, Plaintiff-Appellee, v. Gaston ORTIZ-ORTIZ, Defendant-Appellant

Area
other
Panel
Barry G. Silverman (author), Fletcher, Mary H. Murguia

Analysis

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Opinion

FILED NOT FOR PUBLICATION OCT 05 2011

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 10-50547 Plaintiff - Appellee, D.C. No. 3:08-cr-03263-L v. MEMORANDUM * GASTON ORTIZ-ORTIZ, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California M. James Lorenz, District Judge, Presiding Submitted September 27, 2011 ** Before: SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.

Gaston Ortiz-Ortiz appeals from the 77-month sentence imposed upon remand following his guilty-plea conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Ortiz-Ortiz contends that the district court erred by imposing a 16-level enhancement, pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), because none of his prior convictions constitutes a crime of violence.

Prior to committing the instant offense, Ortiz-Ortiz suffered a conviction under California Penal Code § 422, for making criminal threats. This conviction is categorically a conviction for a crime of violence under U.S.S.G. § 2L1.2. See United States v. Villavicencio-Burruel, 608 F.3d 556, 563 (9th Cir. 2010). Ortiz- Ortiz’s collateral challenges to his section 422 conviction are unavailing because he was represented by counsel in that proceeding. See Custis v. United States, 511 U.S. 485, 496-97 (1994) (defendant in federal sentencing proceeding cannot collaterally attack validity of prior state conviction used to enhance sentence except where there was a “failure to appoint counsel at all”).

AFFIRMED.

2 10-50547

Cites, in this corpus