United States of America, Plaintiff-appellee, v. Mario Alfonso De La Mora-avila, Defendant-appellant, 39 F.3d 1189 (9th Cir. 1994)

MEMORANDUM^** 

Mario Alfonso de la Mora-Avila appeals his 77-month sentence following his guilty plea to illegal entry after deportation in violation of 8 U.S.C. § 1326. He contends the district court erred by counting a prior armed robbery conviction in 1984 in California state court in calculating his offense level and criminal history score. De la Mora-Avila contends the guilty plea was invalid and in violation of his constitutional rights because the California state court did not: (1) inquire whether he was satisfied with his attorney; (2) determine whether the plea was coerced; and (3) determine whether he was mentally competent to enter a guilty plea.

On May 23, 1994, the Supreme Court decided that a defendant has no constitutional right to collaterally attack a state court conviction used to enhance a sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e). Custis v. United States, 114 S. Ct. 1732 (1994). De la Mora-Avila urges that, despite Custis, Sec. 4A1.2 of the Sentencing Guidelines independently provides authority for a collateral challenge to a predicate state conviction. De la Mora's argument lacks merit. This court has held that Application Note 6 of Sec. 4A1.2 precludes such an attack. United States v. Fondren, No. 93-50470, slip op. at 9136 (9th Cir. August 12, 1994.

De la Mora-Avila also argues that because the Application Notes differ in the Sentencing Guidelines for the 1992 and 1993¹  versions, this court cannot rely on the 1993 version. We specifically stated in Fondren that:

[The] 1993 clarification to the [application notes] of the Guidelines, effective retroactively, removes any lingering uncertainty [about the collateral attack of a state court conviction].

Slip op. at 9136.

In light of Custis and Fondren, de la Mora-Avila cannot collaterally challenge his 1984 state conviction.

AFFIRMED.