United States v. Gaston Ortiz-Ortiz

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NOT FOR PUBLICATION OCT 05 2011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