United States v. Mynor Rene Rosales

45 F.3d 438
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Mynor Rene ROSALES, Defendant-Appellant.

No. 93-50516.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 12, 1994.
Filed Aug. 17, 1994.
Decided Dec. 15, 1994.

1

Before: POOLE and REINHARDT, Circuit Judges; TANNER,* District Judge.

2

ORDER**

3

The memorandum disposition filed August 17, 1994 is hereby withdrawn.

4

Before: POOLE and REINHARDT, Circuit Judges; TANNER,* District Judge.

5

MEMORANDUM**

6

Rosales appeals from the imposition of a 180 month sentence imposed upon his pleas of guilty to violations of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 924(c) and (d)(1). He challenges the district court's inclusion of a 1982 conviction for manslaughter and a 1990 conviction for sale of a controlled substance. He argues that these two prior convictions were based on unconstitutionally obtained guilty pleas, and thus should have been excluded from computation of his criminal history category. We disagree.

7

In United States v. Fondren, 32 F.3d 429 (9th Cir.1994), we held that pursuant to Custis v. United States, 114 S.Ct. 1732 (1994) a defendant has no right in his federal sentencing proceeding to challenge the constitutionality of prior convictions used to enhance his federal sentence, unless those convictions were obtained in violation of the right to counsel. See also United States v. Burrows, 36 F.3d 875, 885 (9th Cir.1994) (relying on Fondren ). Rosales does not argue that he was not represented by counsel when he pleaded guilty in 1982 and 1990. Rosales' arguments are foreclosed by Fondren.

8

AFFIRMED.

*

The Honorable Jack E. Tanner, Senior United States District Judge for the Western District of Washington, sitting by designation

**

This Order is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

*

The Honorable Jack E. Tanner, Senior United States District Judge for the Western District of Washington, sitting by designation

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3