United States v. Gaston Ortiz-Ortiz

MEMORANDUM

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.

Ortiz-Ortiz contends that the district court erred by imposing a 16-level enhancement, pursuant to U.S.S.G. § 2L1.2(b)(l)(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 , 114 S.Ct. 1732 , 128 L.Ed.2d 517 (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…