United States v. Jaime Beltran-Jimenez

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 19 2013

MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS

UNITED STATES OF AMERICA, No. 12-10205

Plaintiff - Appellee, D.C. No. 4:10-cr-00948-CKJ

v.
MEMORANDUM *
JAIME BELTRAN-JIMENEZ,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding

Submitted August 14, 2013 **

Before: SCHROEDER, GRABER, and PAEZ, Circuit Judges.

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.

*
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).
 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 (2010), is not retroactive. See

Chaidez v. United States, 133 S. Ct. 1103, 1113 (2013). Accordingly, the district

court properly denied the motion to dismiss.

AFFIRMED.

2 12-10205