Opinion
No. 11-50434 D.C. No. 3:09-cr-03587-DMS-1
02-22-2013
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RENE ARIAS-ROBLES, Defendant - Appellant.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Argued and Submitted February 4, 2013
Pasadena, California
Before: PREGERSON, W. FLETCHER, and NGUYEN, Circuit Judges.
Rene Arias-Robles appeals his sentence for illegal reentry after deportation, 8 U.S.C. § 1326. He contends that the district court erred by imposing a 16-level increase under the sentencing guidelines for a prior conviction that was obtained in violation of his Sixth Amendment right to counsel under Padilla v. Kentucky, 130 S. Ct. 1473 (2010), and by imposing a sentence that was substantively unreasonable. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Arias-Robles cannot challenge his prior conviction in this proceeding because he was represented by counsel at the time. Custis v. United States, 511 U.S. 485, 496 (1994); see also United States v. Oseguera-Madrigal, 700 F.3d 1196, 1199 n.4 (9th Cir. 2012). Moreover, the record does not support Arias-Robles's contention that his former counsel failed to advise him before he pled guilty in the Texas case that deportation was a certain—as opposed to possible—consequence of that plea.
The district court did not err in enhancing Arias-Robles's sentence based on the Texas conviction. At the time of Arias-Robles's sentencing in this case, the Texas conviction was final. See Clay v. United States, 537 U.S. 522, 527 (2003). His postconviction motion to vacate his sentence under 28 U.S.C. § 2255 is considered a collateral proceeding. See id. at 524-25.
The district court did not abuse its discretion by imposing a sentence at the low end of the guidelines range. See United States v. Vasquez-Cruz, 692 F.3d 1001, 1009 (9th Cir. 2012).
AFFIRMED.