United States of America v. Gaston Ortiz-Ortiz

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GASTON ORTIZ-ORTIZ,
Defendant - Appellant.
No. 10-50547
D.C. No. 3:08-cr-03263-L
MEMORANDUM*
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.
FILED
OCT 05 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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10-50547 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.

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