USCA1 Opinion
August 3, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-2031
UNITED STATES,
Appellee,
v.
JUAN MOISES PEREZ-MENDEZ,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judge.
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Randy Olen and John M. Cicilline on brief for appellant.
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Sheldon Whitehouse, United States Attorney, Margaret E.
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Curran and Michael E. Davitt, Assistant United States Attorneys,
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on brief for appellee.
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Per Curiam. Defendant-appellant Juan Moises Perez-
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Mendez ("Perez") was indicted in the United States District
Court for the District of Rhode Island for unlawful reentry
into the United States following deportation, in violation of
8 U.S.C. 1326. Perez moved to dismiss the indictment,
collaterally attacking the validity of the deportation order
upon which the indictment was based. After a hearing on the
motion to dismiss, the district court denied the motion.
Perez entered an unconditional guilty plea, failing to
reserve the right to appeal from the denial of his motion to
dismiss the indictment. He was sentenced to 46 months in
prison. He appeals from the denial of his motion to dismiss
the indictment and from the sentence. We affirm.
A. Motion to Dismiss Indictment
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Perez seeks to appeal from the district court's denial
of his motion to dismiss the indictment. He failed, however,
to preserve that issue for appellate review when he entered
his unconditional guilty plea. Rule 11 of the Federal Rules
of Criminal Procedure 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, reserving in
writing the right, on appeal from the judgment, to
review of the adverse determination of any
specified pretrial motion.
Fed. R. Crim. P. 11(a)(2). Having failed to comply with
those requirements, Perez is precluded from obtaining review
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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 non-jurisdictional lapses that may have marred
the case's progress up to that point, thereby absolving any
errors in the trial court's antecedent rulings (other than
errors that implicate the court's jurisdiction)." United
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States v. Cordero, 42 F.3d 697, 699 (1st Cir. 1994). There
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is an exception to this rule for errors that call into
question the district court's jurisdiction over the case.
See Blackledge v. Perry, 417 U.S. 21, 30-31 (1974) (holding
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that guilty plea did not foreclose habeas petitioner from
attacking his conviction in Superior Court where "the very
initiation of the proceedings against him in the Superior
Court . . . operated to deny him due process of law."); Menna
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v. New York, 423 U.S. 61, 62-63 (1975) (holding that guilty
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plea 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 reentry charge, the district
court violated his due process rights. Instead, he contends
that the underlying deportation hearing violated the due
process clause and that, therefore, a necessary element of
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the charge against him cannot be satisfied. In United States
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v. Mendoza-Lopez, 481 U.S. 828, 839 (1987), the Supreme Court
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established the right of a defendant to collaterally
challenge the use of a deportation proceeding as an element
of a criminal offense "where the deportation proceeding
effectively eliminates the right of the alien to obtain
judicial review." Id. By entering an unconditional guilty
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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 United States v. Broce, 488 U.S. 563, 569-70 (1989),
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the Supreme Court clarified that "[a] plea of guilty and the
ensuing conviction comprehend all of the factual and legal
elements necessary to sustain a binding, final judgment of
guilt and a lawful sentence. . . . A guilty plea 'is more
than a confession which admits that the accused did various
acts.' It is an 'admission that he committed the crime
charged against him.'" (Citations omitted.) Therefore,
Perez' guilty plea to the charge of illegal reentry following
deportation included an admission to the prior deportation
element of the crime. Perez' waiver need not have been
conscious to bar his collateral challenge to the deportation.
"Waiver in that sense is not required." Id. at 573.
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Accordingly, Perez has waived his right to appeal from the
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district court's denial of his motion to dismiss the
indictment. 1
B. Sentencing
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Perez attempts to challenge the district court's failure
to grant him a downward departure from the guideline
sentencing range under the United States Sentencing
Guidelines. As this court has often held, "no appeal lies
from a discretionary refusal to depart." United States v.
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Morrison, 46 F.3d 127, 130 (1st Cir. 1995). There is
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appellate jurisdiction, however, "where the decision not to
depart is based on the sentencing court's assessment of its
lack of authority or power to depart." Id. The statements
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by the court during Perez' sentencing clearly "reflect[] no
misapprehension on the part 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
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jurisdiction to review the departure decision.
Perez' conviction and sentence are summarily affirmed.
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See Loc. R. 27.1.
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1. Were we to consider the merits, we would uphold the
district court's denial of Perez' motion to dismiss the
indictment.
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