USCA1 Opinion

August 3, 1995

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 94-2031

UNITED STATES,

Appellee,

v.

JUAN MOISES PEREZ-MENDEZ,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

___________________

____________________

Before

Selya, Cyr and Boudin,

Circuit Judge.
_____________

____________________

Randy Olen and John M. Cicilline on brief for appellant.

__________
_________________
Sheldon Whitehouse,
___________________

United

States Attorney,

Margaret E.
____________

Curran and Michael E. Davitt, Assistant United States Attorneys,

______
__________________
on brief for appellee.

____________________

____________________

Per Curiam.
__________

Defendant-appellant Juan Moises Perez-

Mendez ("Perez")

Court for the

was indicted in the

United States District

District of Rhode Island

for unlawful reentry

into the United States following deportation, in violation of

U.S.C.

1326.

Perez moved

to dismiss

collaterally attacking the validity

of the deportation order

upon which the indictment was based.

motion

Perez

to dismiss,

entered

reserve

an

the

guilty

denied the

plea,

the

motion.

failing

to

the right to appeal from the denial of his motion to

dismiss the indictment.

prison.

After a hearing on

district court

unconditional

the indictment,

He

was sentenced to

He appeals from the denial of his

the indictment and from the sentence.

46 months

in

motion to dismiss

We affirm.

A. Motion to Dismiss Indictment

____________________________

Perez seeks

to appeal from the

district court's denial

of his motion to dismiss the indictment.

to preserve that issue for

his

of

appellate review when he

unconditional guilty plea.

Criminal

Procedure

He failed, however,

entered

Rule 11 of the Federal Rules

sets

forth

the

requirements

for

reserving such issues for appeal:

With the approval

of the court and

the consent of

the government, a defendant may enter a conditional

plea

of

guilty or

nolo contendere,

writing the right, on

review

of

the

reserving in

appeal from the judgment, to

adverse

determination

of

any

specified pretrial motion.

Fed.

R. Crim.

P. 11(a)(2).

Having

those requirements, Perez is precluded

-2-

failed to

comply with

from obtaining review

of the district court's

denial of his motion to

dismiss the

indictment.

This court has held

"with monotonous regularity that an

unconditional guilty plea effectuates a waiver of any and all

independent

the

non-jurisdictional lapses

case's progress up to that

errors in

errors

the trial

that

that may

point, thereby absolving any

court's antecedent rulings

implicate

the

have marred

court's

(other than

jurisdiction)." United
______

States v. Cordero, 42 F.3d

______
_______

is

an exception

question the

to

697, 699 (1st Cir. 1994).

this rule

district court's

for

jurisdiction

See Blackledge v.
___ __________

Perry, 417 U.S. 21,

_____

that

did not

guilty plea

attacking his

initiation

conviction in

of the

errors that

call

over the

into

case.

30-31 (1974) (holding

foreclose habeas

petitioner from

Superior Court where

proceedings against

There

him in

"the very

the Superior

Court . . . operated to deny him due process of law."); Menna

_____

v. New York, 423

________

plea

U.S. 61, 62-63 (1975) (holding

that guilty

does not waive double jeopardy claim that the state was

precluded

from hailing him into court on the charge to which

he had pleaded guilty).

In this case, Perez does not argue that merely by haling

him into court

on the illegal

court violated his due process

that

the underlying

process clause

reentry charge, the

rights.

deportation

and that,

Instead, he contends

hearing violated

therefore, a necessary

-3-

district

the

due

element of

the charge against him cannot be satisfied.

In United States
_____________

v. Mendoza-Lopez, 481 U.S. 828, 839 (1987), the Supreme Court

_____________

established

the

challenge the

of

of

defendant

to

use of a deportation proceeding

a criminal

effectively

right

offense

eliminates

judicial review."

Id.
___

"where

the

the right

collaterally

as an element

deportation

of

By entering an

the

proceeding

alien to

obtain

unconditional guilty

plea, however, Perez waived the right to challenge the use of

the deportation proceeding as an element of the

1326 charge

to which he pleaded guilty.

In

the

United States v. Broce, 488 U.S. 563, 569-70 (1989),

_____________
_____

Supreme Court clarified that "[a] plea of guilty and the

ensuing conviction

comprehend all

of the factual

and legal

elements necessary

guilt and

than

to sustain

a lawful sentence.

a binding, final

. . .

a confession which admits

acts.'

It is

charged

against

A guilty plea

'is more

that the accused did various

an 'admission

him.'"

judgment of

that

(Citations

he committed

omitted.)

the crime

Therefore,

Perez' guilty plea to the charge of illegal reentry following

deportation included

element

of

an admission

the crime.

Perez'

to the

waiver

prior deportation

need not

have been

conscious to bar his collateral challenge to the deportation.

"Waiver

in

that

Accordingly, Perez

sense

is

not

has waived his

required."

Id.
___

right to appeal

at

573.

from the

-4-

district

court's

denial

of

his

motion

to

dismiss

the

indictment. 1

B. Sentencing
__________

Perez attempts to challenge the district court's failure

to

grant

sentencing

him

range

downward

under

departure

the

United

from

the

States

guideline

Sentencing

Guidelines.

from

As this court

a discretionary

Morrison,
________

46

F.3d

refusal to

127, 130

appellate jurisdiction,

depart is based

lack

has often held,

(1st

depart." United States v.

______________

Cir.

1995).

however, "where the

There

depart." Id.
___

court during Perez' sentencing

misapprehension on the part

is

decision not to

on the sentencing court's assessment

of authority or power to

by the

"no appeal lies

of its

The statements

clearly "reflect[] no

of the district court as

to its

departure power, but simply its decision not to exercise that

power in the present case."

Id. at 132.
__

Therefore, we lack

jurisdiction to review the departure decision.

Perez' conviction

and sentence are

summarily affirmed.
________

See Loc. R. 27.1.

___

____________________

1.

Were

district

we to
court's

consider

the merits,

denial of

Perez'

indictment.

-5-

we
motion

would uphold

the

to dismiss

the