                                                                           FILED
                           NOT FOR PUBLICATION                             OCT 28 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-30090

              Plaintiff - Appellee,              D.C. No. 2:09-cr-06045-FVS-1

  v.
                                                 MEMORANDUM*
ANTONIO AGUILAR-LOPEZ,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-30091

              Plaintiff - Appellee,              D.C. No. 2:10-cr-06018-FVS-1

  v.

ANTONIO AGUILAR-LOPEZ,

              Defendant - Appellant.


                   Appeals from the United States District Court
                      for the Eastern District of Washington
                Fred L. Van Sickle, Senior District Judge, Presiding

                      Argued and Submitted October 11, 2013
                               Seattle, Washington

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: TASHIMA, GRABER, and MURGUIA, Circuit Judges.

      Defendant Antonio Aguilar-Lopez appeals his convictions for Alien in the

United States After Deportation, in violation of 8 U.S.C. § 1326, and Manufacture

of a Controlled Substance (Marijuana) and Aiding and Abetting, in violation of 21

U.S.C. § 841(a)(1) and 18 U.S.C. § 2. For the reasons stated below, we affirm.

      1.     A defendant in a § 1326 proceeding generally may not collaterally

attack the state court criminal conviction that served as the basis for the

defendant’s underlying deportation order. United States v. Gutierrez-Cervantez,

132 F.3d 460, 462 (9th Cir. 1997) (citing Custis v. United States, 511 U.S. 485,

493-97 (1994)). The exception, id., does not apply. The district court therefore did

not err in denying Defendant’s motion to dismiss the indictment on that ground.

      2.     Pursuant to our general rule, we decline to review on direct appeal

Defendant’s challenges to the effectiveness of defense counsel. See United States

v. Jeronimo, 398 F.3d 1149, 1155 (9th Cir. 2005) (citing United States v.

McKenna, 327 F.3d 830, 845 (9th Cir. 2003)) (stating that general rule), overruled

on other grounds by United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir.




                                           2
2007) (en banc). Neither of the two “extraordinary exceptions” to that general rule

applies here.1 See id. at 1156.

      3.     The district court’s denial of Defendant’s motion for a mistrial was

not reversible error. Even assuming that Cantu’s statement amounted to a violation

of Defendant’s Fifth Amendment rights under Doyle v. Ohio, 426 U.S. 610 (1976),

the district court’s decision to admit the statement was harmless beyond a

reasonable doubt. See United States v. Velarde-Gomez, 269 F.3d 1023, 1034 (9th

Cir. 2001) (en banc). The extent of Cantu’s statement was limited, the likelihood

that the jury drew from the statement an unfavorable inference of guilt sufficient to

affect the outcome of the case was slim, and the prosecutor did not attempt to use

the statement to establish such an inference. See id. Additionally, substantial

additional evidence existed to support Defendant’s conviction. See id.

      4.     To the extent that the district court erred by failing to comply with the

procedural requirements of 21 U.S.C. § 851(b), the error does not require reversal

because it did not affect Defendant’s substantial rights. See United States v.

Severino, 316 F.3d 939, 947 (9th Cir. 2003) (en banc). Defendant had sufficient

notice of the government’s intent to rely on his prior Idaho state criminal

      1
            With respect to Defendant’s challenges to the effectiveness of defense
counsel, we affirm without prejudice to raising those claims in a subsequent habeas
petition.

                                          3
conviction as the basis for his enhanced sentence. Defendant also had

opportunities to deny the validity of that conviction at his change-of-plea hearing

and in his sentencing memorandum. He declined to do so, and instead conceded

that the “predicate offence [sic] is a possession of a controlled substance.”

Because Defendant had sufficient notice and opportunity to be heard with respect

to the validity of his prior conviction, his substantial rights were not affected by the

district court’s alleged error. See United States v. Hamilton, 208 F.3d 1165, 1169

(9th Cir. 2000) (holding that reasonable notice and an opportunity to be heard

regarding the possibility of an enhanced sentence for recidivism suffice to satisfy a

defendant’s due process rights).

      AFFIRMED.




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