United States v. Carlos Cedano-Perez , 544 F. App'x 728 ( 2013 )

FILED
NOT FOR PUBLICATION NOV 07 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10239
Plaintiff - Appellee, D.C. No. 2:09-cr-00421-JCM-
VCF-1
v.
CARLOS ALBERTO CEDANO-PEREZ, MEMORANDUM*
AKA Carlos Arturo Cedano-Perez,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted November 5, 2013**
Pasadena, California
Before: McKEOWN, GOULD, and BYBEE, Circuit Judges.
Defendant-Appellant Carlos Cedano-Perez appeals his below-guidelines
46-month sentence following a conditional guilty plea to illegal reentry into the
*
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).
United States after deportation, in violation of 8 U.S.C. § 1326(a). We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Cedano-Perez contends that the district court erred in applying a 16-level
increase for a prior crime of violence, under U.S.S.G. § 2L1.2(b)(1)(A)(ii), based
upon Cedano-Perez’s 2000 Nevada conviction for battery with substantial bodily
harm. Cedano-Perez contends that he is actually innocent of the Nevada offense,
and that he received ineffective assistance of counsel. Absent denial of right to
counsel, Cedano-Perez misunderstands the power of our court to review his
Nevada conviction. See Daniels v. United States, 532 U.S. 374, 376, 121 S. Ct.
1578, 1580, 149 L. Ed. 2d 590 (2001) (prohibiting collateral attack of prior state
conviction in 28 U.S.C. § 2255 proceeding); Custis v. United States, 511 U.S. 485,
114 S. Ct. 1732, 128 L. Ed. 2d 517 (1994) (prohibiting collateral attack of prior state
conviction at federal sentencing proceeding). As Cedano-Perez had counsel during
his state court criminal proceedings, the district court appropriately concluded that
Cedano-Perez could not collaterally attack his Nevada conviction at his federal
sentencing.1 See United States v. Martinez-Martinez, 295 F.3d 1041, 1044-45 (9th
1
We do not consider here whether Cedano-Perez could challenge his state
conviction under 28 U.S.C. § 2255 as a “rare case[]” in which there was previously
no available channel of review due to “no fault of his own.” See Daniels, 532 U.S.
at 376.
-2-
Cir. 2002); United States v. Gutierrez-Cervantez, 132 F.3d 460, 462 (9th Cir.
1997).
AFFIRMED.
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