     Case: 12-20365       Document: 00512235575         Page: 1     Date Filed: 05/08/2013




             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                      Fifth Circuit

                                                                            FILED
                                                                            May 8, 2013
                                     No. 12-20365
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RUBEN MICHAEL REYES,

                                                  Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:11-CR-517-1


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
         Ruben Michael Reyes appeals the sentence imposed upon his conviction
for being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). Having
been previously convicted of three violent felonies - attempted murder,
aggravated assault with a deadly weapon, and burglary of a habitation - Reyes’s
sentence was enhanced under the Armed Career Criminal Act (ACCA) to a
statutory minimum of 180 months of imprisonment. See 18 U.S.C. § 924(a)(2)
& (e).

         *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 12-20365    Document: 00512235575     Page: 2   Date Filed: 05/08/2013

                                 No. 12-20365

      Reyes argues that the district court erred in refusing to consider the
legality of his Texas conviction for aggravated assault with a deadly weapon.
This conviction is void, he argues, because he was sentenced to only two years
of imprisonment, and the Texas statute of conviction provides for a statutory
minimum sentence of 15 years. This argument is foreclosed by United States v.
Custis, 511 U.S. 485 (1994), in which the Court held that with the sole exception
of convictions obtained in violation of the right to counsel, a defendant in a
federal sentencing proceeding has no right to collaterally attack the validity of
previous state convictions used to enhance his sentence under the ACCA.
Custis, 511 U.S. at 487; see also McNeill v. United States, 131 S. Ct. 2218, 2223
(2011)(an ACCA case noting that definition of “crime punishable by
imprisonment for a term exceeding one year” “creates a clear negative
implication that courts may count a conviction that has not been set
aside”)(internal citation and quotation marks omitted). His general argument
that his conviction for aggravated assault is not of the type that was intended
to be used for enhancement under the ACCA lacks merit. See United States v.
Martinez, 962 F.2d 1161, 1167-68 (5th Cir. 1992).
      AFFIRMED.




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