                                                                              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                           NOT FOR PUBLICATION                                NOV 07 2013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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