                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 22 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-50434

              Plaintiff - Appellee,              D.C. No. 3:09-cr-03587-DMS-1

  v.
                                                 MEMORANDUM *
RENE ARIAS-ROBLES,

              Defendant - Appellant.



                    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



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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.




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