United States Court of Appeals
                        For the First Circuit


No. 04-1592

                      UNITED STATES OF AMERICA,

                              Appellee,

                                  v.

                  DARIO DELEON, a/k/a RAFAEL GARCIA,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Patti B. Saris, U.S. District Judge]


                                Before

               Selya, Lynch, and Lipez, Circuit Judges.


     Roberto M. Braceras, with whom Christine M. Genaitis and
Goodwin Procter LLP were on brief, for appellant.
     Randall E. Kromm, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.


                            April 7, 2006
            LYNCH, Circuit Judge.      It is a crime for an alien to re-

enter the country after he has been deported, unless he has the

express permission of the Attorney General of the United States (or

unless    such   permission   is   unnecessary    in   his   case   for   other

reasons).    8 U.S.C. § 1326(a). The usual sentence for the crime is

a term in prison, followed by deportation.

            Somewhat unusually in the criminal law, there is an

exception provided by statute, 

for aliens who can

prove     that    the   original   deportation     order     was    based    on

administrative      proceedings    which   were    fundamentally      unfair.

Subsection 1326(d) codifies these due process concerns, which were

originally set forth in United States v. Mendoza-Lopez, 

(1987).      See United States v. Luna, 

, 317 (1st Cir.

2006).    The collateral attack on the deportation order pursuant to

§ 1326(d) requires that the alien make three showings: that he has

exhausted administrative remedies, that he was improperly deprived

of the opportunity for judicial review, and that the deportation

order was fundamentally unfair.

            Rafael Garcia was convicted after a jury trial of the

crime of illegal re-entry and was sentenced on April 29, 2004 to 33

months' imprisonment and two years of supervised release; he was

released from prison on September 2, 2005, and was in immigration

custody awaiting deportation as of the close of briefing in this

appeal.


                                     -2-
              His appeal turns largely on attacking rulings by the

district court denying his motion to dismiss the indictment under

§   1326(d)    because       he   had    not   met   the     three    criteria    for    a

successful collateral attack, and denying dismissal on statute of

limitations grounds. He challenges jury findings that the criminal

proceedings      were        brought     within      the    five-year      statute      of

limitations and that he re-entered the country without the express

consent of the Attorney General.               Although he has served his term

of imprisonment, will be deported,1 and cannot re-enter the United

States   legally,       he    also      attacks   his      sentence   of   33    months'

imprisonment plus supervised release.                      Finally, and with some

cause, he complains about the delay of more than one year before

the district court provided him a transcript for appeal.

              The one fact that permeates the analysis in this case,

and that affects many of the issues, is that at the time of his

original 1995 conviction for sale of crack cocaine and consequent

deportation, Garcia gave the false name of Dario DeLeon.                        He chose

to hide from the Immigration and Naturalization Service (INS)2 both


1
  In 1996, Congress replaced the statutory term "deportation" with
"removal." See Saint Fort v. Ashcroft, 

, 197 (1st Cir.
2003). For the sake of consistency, we use the term "deportation"
throughout this opinion.
2
   On March 1, 2003, the INS ceased to exist and its principal
functions were transferred to the Bureau of Immigration and Customs
Enforcement in the Department of Homeland Security. See Homeland
Security Act of 2002, Pub. L. No. 107-296, § 471, 116 Stat. 2135,
2205 (codified at 6 U.S.C. § 291(a)). We refer to the agency as
the INS throughout.

                                           -3-
his true identity and the fact that he had a green card in his true

name (Rafael Garcia).       Indeed, he asked for a prompt deportation

and took no appeal.       The district court found as a matter of fact

that this was a deliberate scheme of deception on his part so that

he could illegally re-enter the country by using his green card and

his real name.    This is exactly what he did a mere two months after

his deportation; he then lived in the United States for nearly

eight years as Rafael Garcia.          In March 2003, the government

learned for the first time that Rafael Garcia was the same person

as the deported DeLeon and started these proceedings.

          We     affirm   Garcia's   conviction   and   sentence   in   all

respects and note these key points in our holdings.            First, in

performing the collateral attack analysis under § 1326(d), the

court ordinarily should address the initial test of exhaustion of

administrative remedies before going on to the other two tests.

Second, we address the situation where an alien claims that the

statute of limitations applicable to § 1326 prosecutions has run

but the government's lack of knowledge of the alien's presence is

a result of the alien's misrepresentations as to his identity.

Third, we clarify and reinforce that a defendant who has been

delayed in resolution of his appeal by delay in preparation of the

trial transcript cannot establish a violation of due process absent

a showing of prejudice.




                                     -4-
                                 I.

           The following facts are undisputed except where otherwise

noted.

A.         Garcia's Initial Criminal Conviction and Deportation

           Garcia, a native of the Dominican Republic, came to

Puerto Rico in 1981 or 1982, when he was approximately twelve years

old.   He obtained temporary permanent resident status in 1987 and

lawful permanent resident status in 1990.       He later moved to

Massachusetts.

           In late February 1995, Garcia was arrested in Quincy,

Massachusetts and charged with, among other things, selling crack

cocaine to undercover officers.       Garcia, who was carrying no

identification, told the police his name was Dario DeLeon. He also

gave a false birth date and lied about his father's name.

           Garcia, who said he spoke no English, appeared at least

twice in Quincy District Court, accompanied both times by an

attorney and at least once by an interpreter.       According to a

notation in the court records, Garcia was "[a]dvised of right to

counsel" and "[a]dvised of alien rights."   He never told the judge

or anyone else his real name.    On March 28, still under the name

DeLeon, Garcia entered a plea to the drug charge3 and was sentenced

to time served, thirty days' incarceration.


3
  The district court found that Garcia pled nolo contendere, while
the government says he pled guilty. The difference is immaterial
to his appeal.

                                -5-
          Garcia was then transferred to the custody of the INS.

There he again identified himself as DeLeon and consistently denied

having legal status.    He denied having a visa or a Social Security

number and claimed to be unemployed.

          The INS Order to Show Cause issued to Garcia (under the

name of DeLeon), which was written in both English and Spanish,

informed him, among other things, that he could "seek an attorney

or representative, if [he] desire[d] to be represented."           It also

informed him that if he was not satisfied with the eventual

decision of the Immigration Judge (IJ), he had the right to appeal.

Garcia signed a form (using the name DeLeon) which stated that the

Order to Show Cause had been read to him in Spanish.            Garcia also

signed (as DeLeon) a form that stated, in Spanish, that he was "not

a citizen of the United States," that he "d[id] not wish to apply

for relief from deportation," and that he "want[ed] to be deported

as soon as possible."    The form further stated: "This request is

completely voluntary.        I have not been coerced, threatened, or

enticed in any way . . . ."

          Prior   to   his    appearance   before   the   IJ,   Garcia   was

provided with a "Notice of Rights" in Spanish.        The notice had two

relevant sections. The first, entitled "Right to be Represented by

an Attorney or Representative," stated:

          If you have any questions regarding any of
          your rights you can speak with an attorney or
          representative who can explain your rights,
          including any relief that may be available to

                                   -6-
           you from deportation.    The officer who gave
           you this notice will give you a list of
           organizations    that   can    provide   legal
           information.     Representatives from these
           organizations will speak to you for free or
           for a small fee, and some of them might speak
           your language. . . . You may contact a lawyer
           or other legal representative at this time or
           at any other time prior to your departure from
           the United States.

The   second   section,   entitled    "Right   to   a   Hearing   Before   an

Immigration Judge," stated in relevant part:

           If you do not want to return to your country,
           you have a right to a hearing before an
           immigration judge, who will determine whether
           you can remain in the United States. If you
           request a hearing, you may be represented at
           the hearing by a lawyer or other legal
           representative at your own expense.     If you
           cannot afford to pay a lawyer, you may contact
           an organization on the list of free legal
           services. For example, if you are married to
           a U.S. citizen or permanent resident, or have
           lived in the U.S. for seven years or longer,
           and have not been convicted of a serious
           crime, you may be eligible for relief from
           deportation.

(emphasis in the original).     Garcia signed the bottom of the form

(as DeLeon), indicating he had read it.

           Garcia also received, as part of the Order to Show Cause,

a page of written information entitled "Notice of Rights and

Consequences."    It stated, in both English and Spanish: "You will

be given a list of organizations, attorneys and other persons who

have indicated their availability to represent aliens in these

proceedings.     Some of these persons may represent you free of

charge or for a nominal fee."    It noted that hearings before the IJ

                                     -7-
were typically scheduled no sooner than fourteen days after the

issuance of the Order to Show Cause "to allow you to seek an

attorney or representative, if you desire to be represented."

           On April 26, 1995, Garcia appeared before an IJ in

Oakdale,   Louisiana.     A   court   interpreter    was     present.   The

following colloquy ensued:

           IJ: Mr. DeLeon, sir, this is your first
           appearance in my court, Immigration Court. As
           such, you're entitled to delaying your case,
           if you wish, to better prepare your case or to
           acquire an attorney or we may go forward
           today, whichever you desire.

           Garcia: I cannot afford an attorney. I would
           like to -- I would like to ask for
           deportation.

           IJ:   Do  you   understand      the      nature     of
           Immigration Court, sir?

           Garcia: Yes.

At that point Garcia took an oath to testify truthfully.                The

colloquy then continued:

           IJ: Sir, do you understand that you have the
           right to have an attorney represent you at no
           expense to the government?

           Garcia: Yes.

           . . . .

           IJ: And you understand, sir, that you have the
           right to appeal any decision of this court to
           a higher court in Washington, DC, and you do
           that through the Federal Court system of this
           country?

           Garcia: Yes.


                                  -8-
           IJ: Sir, do you acknowledge previous receipt
           of the Form 6618, the legal aid sheet . . . as
           well as your criminal conviction records?

           Garcia: Yes.

           Later, Garcia stated (still under oath) that he was not

a U.S. citizen or national and that he entered the United States in

1990 without inspection.      The IJ found Garcia deportable.      The IJ

asked the government attorney if he was "aware of any relief" from

deportation, to which the government replied: "No, Your Honor."

The IJ ordered Garcia deported to the Dominican Republic. He asked

Garcia: "Do you wish to accept that decision or is there an

appeal?"   Garcia replied: "I accept it."

B.         Garcia's Re-entry and Second Conviction

           Soon after Garcia's June 1995 deportation, his sister

mailed his green card and passport from Massachusetts to him in the

Dominican Republic. Less than two months later, in late July 1995,

Garcia used these documents to re-enter the United States via

Puerto   Rico   under   his   real   name.4   He   did   not   inform   the

immigration officials that he had been deported as Dario DeLeon.

An immigration official checked Garcia's permanent resident card

and then admitted him. Pursuant to standard practice at that time,




4
   Garcia states in his briefs that he re-entered the country in
early 1996, but immigration records show that the date was July 29,
1995. The difference is immaterial to all questions on appeal,
including the statute of limitations question. We refer to the re-
entry date as 1995.

                                     -9-
he did not take Garcia's fingerprints, nor did he check the prints

already on file for Garcia against any other database.

            Garcia eventually moved back to Massachusetts, where he

lived under his real name for several years.            In March 2003, Garcia

argued with two people at a store in Massachusetts.             After he left

the store, he noticed that the two were following his car.                     He

decided to go to a police station.             The police asked him for

identification, which he provided (under his real name).                       The

police then arrested him on an outstanding warrant for operating an

unregistered vehicle.        Garcia was fingerprinted, and the prints

were sent to the FBI for a check of the Bureau's database; at that

point, authorities realized that Garcia and "DeLeon" were one and

the same.

            Garcia was charged with the federal crime of illegal re-

entry in violation of 8 U.S.C. § 1326.          Before trial, he moved to

dismiss   the   indictment    under    the   theories    that   (1)    the   1995

deportation proceeding violated his right to due process and was

invalid under § 1326(d), and (2) the indictment was untimely.                  The

district court rejected these contentions in a detailed order,

discussed below.

            After a four-day jury trial, Garcia was convicted.                 On

April 29, 2004, the district court sentenced him to 33 months'

imprisonment    (with   credit   for    time   served)    and   24    months   of

supervised release.     Garcia completed his term of imprisonment on


                                      -10-
September 2, 2005, during the pendency of this appeal, and was

transferred to INS custody to await deportation.

                                   II.

           Garcia's primary argument on appeal is that the district

court erred when it found that he failed to meet the collateral

attack   standard   under   §   1326(d)   and   refused   to   dismiss   the

indictment.

           Subsection 1326(d) bars any collateral challenge to the

underlying deportation order unless the alien demonstrates the

following:

           (1) the alien exhausted any administrative
           remedies that may have been available to seek
           relief against the order;
           (2) the deportation proceedings at which the
           order was issued improperly deprived the alien
           of the opportunity for judicial review; and
           (3) the entry of the order was fundamentally
           unfair.

8 U.S.C. § 1326(d).    Here, the district court found that Garcia had

not met the third ground, in part because he could not show

fundamental unfairness, as required under § 1326(d)(3).          See 

.      We review the subsidiary factual findings for

clear error and the ultimate mixed conclusion that there was no

fundamental unfairness de novo.      See 

           Garcia argued before the district court that he was

denied the right to counsel during the 1995 deportation proceeding,

and therefore that he met prongs (2) and (3) and that he was

excused from meeting prong (1).      He argued that he was illiterate

                                   -11-
in both English and Spanish in 1995, and so the notices informing

him of his rights meant little.         He also contended that when the IJ

told him he could obtain counsel and he replied, "I cannot afford

an attorney," the IJ was obligated to pursue the matter.                He stated

that he never received the legal aid sheet listing pro bono service

providers, and that his affirmative answer when the IJ asked him if

he had received the sheet was simply a product of his confusion.

              Garcia also argued that he met the requirements of

§ 1326(d) because he did not know he was eligible for relief from

deportation.     He contended that as a lawful permanent resident, he

would have been eligible for discretionary relief under former

§§ 212(c) and 212(h) of the Immigration and Nationality Act; he

said the government led him to believe he was not eligible for

relief, and that the IJ deprived him of his right to be informed

about potential relief by failing to mention it.

              The district court rejected Garcia's collateral attack,

first in a pretrial opinion and order and again after the verdict.

The   court    skipped   over    the    exhaustion         and   judicial   review

requirements of § 1326(d)(1) and (d)(2) and instead held that

Garcia could not show, pursuant to § 1326(d)(3), that entry of the

1995 deportation order was fundamentally unfair.                 This was so for

several   reasons.       As     to   the      right   to    be   informed    about

discretionary relief, the district court found that the IJ's

failure to mention it was entirely Garcia's fault: Garcia had lied


                                       -12-
to the IJ and INS officials from the beginning, giving them a false

name   and    telling   them    he     had    no   legal   status.    Under   the

circumstances, the court found, the IJ had no duty to tell Garcia

about discretionary relief, because the IJ had no way to know

Garcia was eligible.5

              As to the right to counsel, the court found that Garcia

had    been     "notified      twice     in    writing     of   his   right   to

representation," that the IJ had informed him of his right to

obtain counsel yet he had declined, and that he had told the IJ he

received the legal aid sheet. In the post-verdict order, the court

explicitly found not credible Garcia's testimony during a pretrial

motion hearing that he had never received the legal aid sheet, and

added that even if he had not received it, that would not render

the proceedings unfair, because he told the IJ he had.                    As to

Garcia's purported illiteracy, the district court wrote that it was

"certainly relevant to a due process inquiry" but that "it does not

excuse [Garcia's] failure to notify the immigration judge . . .

that he wanted help in finding an attorney or that he needed help

in reading a list of lawyers."

              Finally, and importantly, the district court concluded

that Garcia could not in any event demonstrate prejudice, as


5
   The court rejected Garcia's argument that the IJ and other INS
officials should have known, or did know, that Garcia was lying
about his identity and status. It found there was "no evidence in
the record to support an inference of bad faith or even
negligence."

                                        -13-
required under § 1326(d)(3), even if he had been denied access to

a list of available counsel.           This was because Garcia did not

intend to avail himself of counsel, but rather intended all along

to lie about his identity and be deported as quickly as possible so

that he could re-enter using his green card and real name.                The

court found: "The totality of Defendant's actions and statements

indicates   that   he   wanted   his   true   identity   and    legal   status

concealed, rather than trumpeted."

            On appeal, Garcia presents the broad argument that at his

deportation   hearing,    "the   government    merely    went   through    the

motions and failed to give meaning to [his] rights."            He says this

is because the IJ "failed to determine whether Mr. Garcia wished to

be represented by counsel" and "failed to advise Mr. Garcia of his

right to pro bono self-obtained counsel."          The brief also argues

that Garcia's rights were impinged because "the INS failed to

provide Mr. Garcia with a list of legal aid counsel, as it was

required to do, thus preventing Mr. Garcia from retaining counsel

who would have obtained § 212(c) relief from deportation."

            These arguments are an attempt to ignore the district

court's findings of fact.6        The district court explicitly found


6
   The brief, for example, entirely fails to inform us that the
district court found Garcia's use of the name DeLeon during the
original deportation to be a deliberate scheme by Garcia to enhance
his prospects for later entry. The brief also asserts, based on
Garcia's testimony, that he never received the legal aid sheet, and
fails to inform us of the district court's finding that that
testimony was not credible. Counsel are not free, on appeal, to

                                   -14-
that Garcia had been advised multiple times of his right to obtain

counsel during the immigration proceedings, that his testimony that

he never received the legal aid list was not credible, that he

never said he wanted a lawyer, and that he never requested time to

find a lawyer.      The court also found that it was quite unlikely

Garcia wanted a lawyer; to further his scheme of fraudulent re-

entry, he wanted to be quickly deported under the false name.

Those    factual   findings    required      a   finding   that     Garcia   could

demonstrate neither prejudice nor fundamental unfairness.                       No

effort is made to show that the findings are clearly erroneous.

            Nonetheless,      we    have   given    Garcia    the    benefit    of

reviewing the district court's findings against the evidence, and

there was no error at all.          The district court's ruling that the

third    precondition    for       collateral     attack     was    not   met   is

unassailable.

            We add that ordinarily, the § 1326(d) analysis should

start with the first ground, which the district court skipped

over.7   Congress has mandated that "an alien may not challenge the



ignore the district court's findings and argue the facts de novo,
even if the ultimate conclusion of law drawn by the district court
from the facts is subject to de novo review.
7
  While courts have some leeway in the structuring of opinions, it
is quite clear that Congress has, particularly in the immigration
laws, placed a premium on exhaustion of agency remedies. In many
cases, if there has been no such exhaustion by taking an appeal to
the Board of Immigration Appeals, a court would not consider the
petitioner's claims.

                                      -15-
validity of the deportation order" unless that alien "exhausted any

administrative remedies that may have been available to seek relief

against the order."     8 U.S.C. § 1326(d)(1) (emphasis added).           It is

clear that appeal to the Board of Immigration Appeals (BIA) is such

an administrative remedy, and that failure to take such an appeal

constitutes a failure of exhaustion.               See Sayyah v. Farquharson,

, 27 (1st Cir. 2004).            It is also undisputed that Garcia

explicitly waived his right to appeal to the BIA when he asked to

be deported "as soon as possible" and subsequently told the IJ he

accepted   the   decision        ordering    him   deported.    Barring   some

exception to the exhaustion requirement, therefore, Garcia may not

challenge the deportation order's validity.

           Garcia argues that just such an exception exists.                He

relies on cases from other courts which have concluded that the

§ 1326(d)(1) exhaustion requirement "cannot bar collateral review

of a deportation proceeding when the waiver of [the] right to an

administrative appeal did not comport with due process," United

States v. Muro-Inclan, 

, 1183 (9th Cir. 2001), and

therefore that "failure to exhaust administrative remedies bars

collateral   review     of   a    deportation      proceeding   under   Section

1326(d)(1) . . . only where an alien's waiver of administrative

review was knowing and intelligent," United States v. Sosa, 

, 136 (2d Cir. 2004); see also 

  (waiver   must   be   "considered        and   intelligent"   (internal


                                      -16-
quotation marks omitted) (quoting United States v. Arrieta, 

, 1079 (9th Cir. 2000))); United States v. Martinez-Rocha,

, 569 (6th Cir. 2003).

          Whether or not this court would create such an exception

to the exhaustion requirement, a question on which we take no view,

the facts here preclude the argument.             Garcia was told at least

twice -- once when the Order to Show Cause was read to him, and

again by the IJ -- that he had the right to appeal.             He was asked

again by the IJ later in the proceeding whether he desired to

appeal.   He   stated   that   he   did    not;   he   also   signed   a   form

indicating that he did not wish to contest deportation. Given this

record, Garcia's waiver was knowing and intelligent.              See United

States v. Johnson, 

, 75 (2d Cir. 2004) (finding knowing

waiver where the IJ "clearly advised" the alien of his right to

appeal); 

(finding knowing waiver in

part because the alien signed a form, read to him in Spanish,

stating that he did not wish to contest the charges).           Further, the

district court found on ample evidence that Garcia never had any

intention of appealing, because he wanted to be deported as quickly

as possible so that he could re-enter under his real name.                 See

(finding of knowing waiver was

supported by an INS agent's testimony that the alien "had expressed

a desire to return to Mexico as soon as possible").




                                    -17-
           Garcia   argues   that   his    waiver   was   not   knowing   and

intelligent because the IJ did not tell him he was eligible for

discretionary relief and the government attorney "affirmatively

informed [him] that he was not entitled to any discretionary

relief."   Again, the argument depends on ignoring the district

court's factual findings.     It was Garcia's lies about his identity

and his failure to disclose his green card status that hid his

potential eligibility from the government and the IJ.8           He gets no

reward for that.    Cf. 8 C.F.R. § 1240.49(a) (stating in the context

of other forms of relief that the IJ "shall inform the respondent

of his or her apparent eligibility") (emphasis added).

           In sum, Garcia knew precisely what he was doing when he

decided to forgo an appeal of his 1995 deportation order; if there

is an exception to the § 1326(d)(1) exhaustion requirement, he does

not fall within it.     His challenge to the 1995 deportation order

fails.

                                    III.

A.         The Statute of Limitations

           The crime of illegal re-entry is subject to a five-year

statute of limitations, 18 U.S.C. § 3282.             The district court

denied Garcia's pretrial motion to dismiss the indictment on


8
   In all events, as a factual matter, Garcia received and signed
at least one form telling him that aliens with various types of
status in the United States, such as those married to permanent
residents and those who had spent many years in the country, could
be eligible for relief.

                                    -18-
limitations grounds.         The issue also was submitted to the jury,

which made a specific finding that the government had proved the

indictment was timely.         We review the district court's pretrial

ruling de novo and the jury's finding for sufficiency of the

evidence.     See United States v. Walsh, 

, 12 (1st Cir.

1991) (holding that district court did not err as a matter of law

in refusing to dismiss an indictment where "a jury could reasonably

have concluded" on the evidence at trial that the limitations

period had not run).

            "[A] deported alien who illegally reenters and remains in

the United States can violate [8 U.S.C. § 1326] at three different

points in time: when he 'enters, 'attempts to enter,' or when he

'is at any time found in' this country."            United States v. Cuevas,

, 784 (1st Cir. 1996) (quoting 8 U.S.C. § 1326(a)(2)).

Where an alien is indicted under the "found in" prong, as Garcia

was here, the alien is deemed to have committed the offense at the

moment he was "found."       

States v. Rodriguez, 

, 8 (1st Cir. 1994)).

            Garcia argues the government could have found out earlier

that he was illegally in the United States and that its lack of

diligence should be held against it.               The argument is based on

language from other courts in factually distinct cases to the

effect   that   an   alien    is   "found"   for    §   1326   purposes   "when

immigration     authorities     could   have,   through    the   exercise   of


                                     -19-
diligence typical of law enforcement authorities, discovered the

violation" -- in other words, when they had constructive knowledge

that the alien was in the country illegally.   See United States v.

Gomez, 

, 1037 (8th Cir. 1994); see also United States

v. Herrera-Ordones, 

, 510 (7th Cir. 1999).      Garcia

argues that the jury was compelled to find that the government had

the requisite constructive knowledge as soon as he re-entered the

country, and so the limitations period ran several years before his

2003 indictment.   This, he says, is because diligent immigration

authorities would have realized at the time of his 1995 re-entry

that he and "DeLeon" were the same person.

          The district court, in considering Garcia's motion to

dismiss, accepted the existence of this constructive knowledge

theory for purposes of analysis.   It examined pre-trial affidavits

and other evidence submitted by the government which stated that

immigration procedures in place in 1995 did not involve checking

the fingerprints of arriving green card holders like Garcia against

any database of criminals or of past deportees. The district court

found that based on this evidence, and on the fact that Garcia lied

about his identity during the deportation process, it could not say

as a matter of law that immigration officials exercising ordinary

diligence should have known at the time of Garcia's re-entry that

he previously had been deported.




                               -20-
            We approach the question differently.         This court has

never adopted the theory that the government may be charged with

constructive knowledge of an alien's illegal re-entry for purposes

of § 1326, and there are certainly good arguments against the

theory in this context.        We do not, however, resolve the broad

question of whether constructive knowledge can be attributed to the

government.    We hold more narrowly that for statute of limitations

purposes in § 1326 prosecutions, there can be no finding of lack of

diligence where it is deception by the alien as to his identity

that has caused the government not to have knowledge of his

presence.    To hold otherwise would be to reward deceit by the alien

and   to   encourage   the   withholding   of   information,   and   so   the

corruption of the deportation process.9            Cf. United States v.

Mercedes, 

, 55 (2d Cir. 2002) ("[I]t is difficult not to

find Mercedes's claim regarding the delay disingenuous when he was

the one who attempted to deceive law enforcement officials by

concealing his true identity"). In any event, the facts before the

district court prior to trial showed that the government could not,

in the ordinary course, have discovered the deception, and so there

would be no basis for a constructive knowledge claim even if one

were cognizable.


9
   Garcia relies on Gomez, 

, for the conclusion that
the constructive knowledge rule should apply even where an alien's
deception prevented immigration officials from learning his true
identity. To the extent Gomez can be read to so hold, we reject
it.

                                   -21-
            Finally, any claim that there was insufficient evidence

to support the jury's finding of timeliness fails.    The government

introduced evidence at trial to the effect that it did not know

Garcia had illegally re-entered the country until he was arrested

in 2003; this evidence was uncontradicted.       The jury had ample

basis to find that it was not a lack of diligence by the government

that resulted in the timing of the indictment in this case.

B.          Consent to Re-enter

            Garcia next argues the evidence was insufficient to

support the jury's conclusion that he lacked the Attorney General's

consent to re-enter the country.     "In reviewing such a challenge,

we consider the record evidence (and any reasonable inferences

therefrom) as a whole and in the light most favorable to the

prosecution, asking whether the evidence would have permitted a

rational jury to find the defendants guilty of the crime charged

beyond a reasonable doubt." United States v. Downs-Moses, 

, 261 (1st Cir. 2003).         "'[T]he evidence may be entirely

circumstantial, and need not exclude every hypothesis of innocence

. . . .'"    United States v. Meléndez-Torres, 

, 49 (1st

Cir. 2005) (internal quotation marks omitted) (quoting United

States v. Scantleberry-Frank, 

, 616 (1st Cir. 1998)).

            To convict Garcia of violating 8 U.S.C. § 1326(a), the

jury must have found that the government proved beyond a reasonable

doubt that Garcia was an alien, that he had been deported, that he


                                  -22-
entered or attempted to enter or was later found in the United

States, and that he did so "without the express consent of the

Attorney General for such entry."            

158 F.3d at 616); see 8 U.S.C. § 1326(a).           At trial, the government

presented    evidence     as     to    the    "express    consent"     prong   --

specifically, a Certificate of Nonexistence of Record stating that

no such consent appeared in the INS A-File10 on "Dario DeLeon."

Garcia argues that since the INS kept a separate A-File on "Rafael

Garcia,"    the   jury   could   not    convict   absent    evidence    that   no

indication of consent appeared in the Rafael Garcia file either.

Since the government produced no such evidence, he says, it failed

to carry its burden.

            This argument is without merit. Garcia's own lies led to

his deportation under the name DeLeon.                   If he had requested

permission to re-enter after deportation, he would have had to do

so as DeLeon (otherwise the request would have made no sense to the

immigration authorities) and any such permission logically would be

in the "DeLeon" file.       Further, as the district court found, the

evidence supports the conclusion that Garcia schemed to be deported

under a false name so he could immediately re-enter using his real

identity.    A jury could reasonably infer that Garcia never would

have requested permission (under any name) to re-enter, since such



10
    An INS A-File "records every contact an alien has with the
immigration service." 

.

                                       -23-
a request would have alerted the INS to his deception.   In short,

the evidence is more than sufficient to sustain the jury verdict.

          Garcia falls back to an argument that he in fact had

express permission to re-enter the country because he did so using

his green card, which was issued by the Attorney General and which

he says constitutes the requisite permission.     As the district

court said: "Under defendant's interpretation of the statute, he

can lie about his identity . . . and then re-enter with impunity

using a green card under his real name.      This would obviously

frustrate the statutory purpose of keeping previously-deported

aliens from reentering the country without the Attorney General's

'express' prior permission."     Garcia had just been deported,

regardless of what name he was using at the time, and he therefore

needed the Attorney General's contemporaneous permission before he

could legally re-enter.   8 U.S.C. § 1326(a).   If Garcia had been

deported under his real name, his green card likely would have been

revoked, and in any event obviously would not constitute such

permission.11 He can gain no advantage from having deceived the INS

about his identity.



11
   Garcia cites a case, United States v. Idowu, 

(D.C.
Cir. 1997), for the proposition that even an invalid green card is
enough to constitute Attorney General consent. The Idowu court
held no such thing. It said only that the defendant alien might
not have needed consent at all because more than five years had
passed since his deportation; because the crucial question involved
passage of time, the court noted that the validity or invalidity of
his arrival documents was irrelevant to its analysis. 

                               -24-
C.         The Almendarez-Torres Issue

           Garcia argues that his conviction must be vacated because

the district court did not submit to the jury the question of his

underlying 1995 drug conviction. He argues that the district court

was required to do so because Almendarez-Torres v. United States,

(1998), in which the Supreme Court held that the prior

conviction is a mere sentencing factor for § 1326(b) purposes, 

has been overruled by subsequent case law.             He relies on

Justice Thomas' concurrence in Shepard v. United States, 

(2005), which stated that in light of Apprendi v. New Jersey,

(2000), and subsequent Sixth Amendment jurisprudence,

"a majority of the Court now recognizes that Almendarez-Torres was

wrongly   decided."     

  (Thomas,    J.,

concurring in part and concurring in the judgment).

           As an initial matter, we note that Garcia seems to be

mixing apples and oranges in challenging his conviction on this

basis.    The cases upon which he relies largely go to whether a

judge may consider a prior conviction for sentencing purposes when

that conviction has not been found by a jury beyond a reasonable

doubt.    See   

     defendants    have    been

unconstitutionally     sentenced      under       the   flawed    rule     of

Almendarez-Torres . . . .") (emphasis added).            Perhaps Garcia is

making a sentencing argument.




                                   -25-
           Either way, however, Garcia's argument fails.                  Garcia

stipulated to the prior conviction at trial: his counsel not only

affirmatively told the jury about the fact of a prior conviction

and agreed to the entry into evidence of a redacted record of the

conviction, but also argued prior to trial that "evidence of [the]

conviction is wholly irrelevant to [Garcia's] charged illegal

reentry offense and has the potential to prejudice Mr. Garcia

unfairly."     Garcia has waived any argument that the jury needed to

find the fact of conviction beyond a reasonable doubt. See Blakely

v. Washington, 

, 310 (2004) ("[A] defendant who stands

trial    may   consent   to    judicial      factfinding     as    to   sentence

enhancements,    which   may   well    be    in   his   interest   if   relevant

evidence would prejudice him at trial."); see also United States v.

Glover, 

, 1208 (10th Cir. 2005) ("In regard to

sentencing, a defendant may waive his Sixth Amendment rights under

Apprendi and Blakely by stipulating to facts underlying sentence

enhancements.") (citing 

).

           Further, even had Garcia not waived the issue, his

precise argument has already been rejected by a panel of this

court.    United States v. Ivery, 

, 75 (1st Cir. 2005).

In Ivery, the court noted that the Supreme Court has taken care to

reaffirm the "prior conviction" exception of Almendarez-Torres in

all of its recent Sixth Amendment jurisprudence, and that even the

Shepard majority cautioned that it "is up to the future to show"


                                      -26-
whether Apprendi eventually will be extended to require proof of

prior   convictions        to   a     jury.      

      marks

omitted) (quoting 

n.5). The Ivery panel

concluded: "It is not our place to anticipate the Supreme Court's

reconsideration       of    its       prior    rulings;       thus     Almendarez-Torres

remains binding law that we must apply until overruled by a

majority of the Supreme Court."                      

turn are bound by

Ivery's holding.

D.          Booker Issue As to Garcia's Term of Supervised Release

            Garcia has now served the imprisonment portion of his

sentence and is subject to a two-year term of supervised release,

but   is   in   the   hands      of    immigration          authorities     and    awaiting

deportation, if he has not yet been deported.                          Nonetheless, in a

long footnote in his brief on appeal, Garcia says he is entitled to

be resentenced, presumably to alter the sentence of supervised

release.

            Garcia     was      sentenced       under       the   mandatory     Guidelines

scheme in place prior to United States v. Booker, 

(2005). He concedes that his Booker claim was not preserved in the

district court, but says he meets the "reasonable probability"

standard this court requires under plain-error Booker review,

United States v. Antonakopoulos, 

, 75 (1st Cir. 2005),

because the district judge sentenced him at the bottom of the

applicable      Guidelines          range     and     stated      that    his     case     was


                                              -27-
sympathetic. The government argues that we cannot reach the Booker

issue because it is moot.

             It is well-settled that a convict's claim is not moot if

he has finished his prison term but still faces supervised release

or a restitution order, so long as those conditions give him "a

continuing stake in the outcome of a challenge" to the sentence.

United States v. Molak, 

, 48 (1st Cir. 2002); see also

United States v. Prochner, 

, 59 n.4 (1st Cir. 2005).

             The    government      argues       that    the    supervised       release

sentencing issue is moot on these facts.                       The argument is that

Garcia,    who     is    in   immigration        custody       and    facing    imminent

deportation from the United States, will never be subject to the

supervised release portion of his sentence.                    The government argues

that the possibility that Garcia could one day return to the United

States does not change the analysis.                    This is because Garcia is

inadmissible as a result of his 1995 cocaine conviction, 8 U.S.C.

§    1182(a)(2)(A)(i)(II),          and      ineligible         for    a     waiver     of

inadmissibility, 

Therefore, Garcia could only be

in   the   United       States,   and   potentially        subject      to     supervised

release, if he broke the law to get here; this will not suffice,

the government argues, because a stake in the outcome of a case

will   not    create       standing     if   it    is     "contingent        upon     [the

defendant's] violating the law" in the future.                       Spencer v. Kemna,

, 15 (1998).


                                          -28-
               There   is      some   case    law   supporting    the   government's

theory.    See Okereke v. United States, 

, 121 (3d Cir.

2002) (finding alien's sentencing appeal moot where alien had been

removed and could not legally reenter, and resentencing "would not

provide [him] with the tangible benefit of reentry"); United States

v. Mercurris, 

, 294 (2d Cir. 1999) (finding moot a

deported alien's claim that the district court erroneously deemed

his crimes "aggravated felonies" because the alien "ha[d] only a

quixotic chance of legally returning to the United States" and "the

possibility       that      his   aggravated        felon   status   could   make   a

difference to him . . . is too speculative to create an Article III

case or controversy").            Defendant has not, in response, identified

any practical impact on him of the Booker supervised release issue.

If there is one, it is not up to the appellate court to try to

guess what it is.           Without adopting a general rule, we hold that

any Booker issue in this case is moot.

E.             The Transcript Delay

               A disturbing aspect of this case is the fourteen-month

period    it    took     for    the   court    reporter     to   produce   the   trial

transcripts for appeal. Unfortunately, this is a recurring problem

in some districts within the circuit, and not a new one.                         See,

e.g., United States v. Pratt, 

, 91 (1st Cir. 1981)

(nine-month delay in preparing a transcript).




                                             -29-
             Garcia filed a Notice of Appeal on April 30, 2004.               On

June   8,   2004,   this    court   ordered   the   district     court's   court

reporter to file, by August 9 of that year, transcripts of Garcia's

trial and related proceedings.

             The period of time until the transcript was prepared was

a shared responsibility of this court, the district court, and

Garcia. The court reporter was granted several extensions, without

objection, which pushed the deadline back to November 1.              When the

transcript was not prepared by that date, this court issued an

Order to Show Cause directing production of the transcripts by

November 22.    Several more rounds of orders and extension requests

followed.

             On August 11, 2005, some fourteen months after the Notice

of Appeal, Garcia first moved to compel production.                 This court

granted the motion, and the transcripts were finally filed on

August 19, 2005.     Garcia says this delay violated his due process

right to a timely appeal, and that the remedy must be reversal of

his conviction.      The prosecution, which is of course not actually

responsible for the transcript delay, is nonetheless deemed to be

responsible, as the government candidly admits.

             The concern is where delay in the appeal due to a tardy

transcript may violate the due process rights of the defendant.

"[E]xtreme delay in the processing of an appeal may amount to a due

process     violation,     and   delays   caused    by   court   reporters   are


                                      -30-
attributable to the government for purposes of determining whether

a defendant has been deprived of due process . . . ."                 United

States v. Luciano-Mosquera, 

, 1158 (1st Cir. 1995)

(citing United States v. Wilson, 

, 1030 (9th Cir.

1994)).   However, "mere delay, in and of itself will not give rise

to a due process infraction.       The defendant must show prejudice."

the Supreme Court has said in the context

of pre-indictment delay, even proof of actual prejudice does not

make a due process claim "automatically valid."            United States v.

Lovasco, 

, 789 (1977).           The court "must consider the

reasons for the delay as well as the prejudice to the [defendant]."

   The showing of prejudice is therefore a threshold

requirement.   See id.; see also 

.

The   prejudice   must   be    such     as   to   render   the   proceedings

"fundamentally unfair."       

.

           The question of what constitutes prejudice is one on

which the circuits have differing views.           Garcia has, relying on

case law from elsewhere, argued that certain effects of delay

constitute prejudice.    We reject the arguments.          Based on what is

properly cognizable as prejudice, we hold that Garcia has not made

his threshold prejudice showing.




                                      -31-
            i.         Cognizable Forms of Prejudice

            We have recognized two forms of possible prejudice.                It

is possible for delay to so impair a defendant's ability to present

his   appeal      as   to      create   prejudice   to   the   appeal    itself.

.             It also is possible that even

where a defendant wins his appeal, the delay in preparing the

transcripts on appeal could have prejudiced his right to make his

case on retrial.         

no impairment of Garcia’s ability to present his

appeal.     He was and has been present in this country and has had

access to counsel.12           When we look as well at the substance of the

arguments    he    has    presented     on   appeal,   the   failure    of   those

arguments has not in any way been caused by the delay.                  Since he

has lost his appeal there can be no impairment of his rights on

retrial.

            To the extent Garcia argues that any particular period -–

here, a one-year delay from the original due date of the transcript



12
     According to his reply brief, Garcia was still awaiting
deportation as of December 29, 2005, six weeks prior to oral
argument. We do not know whether his deportation has been delayed
because of his appeal.     We presume it has not, however, since
Garcia did not request a stay of deportation from this court, and
absent such a stay the government may deport an alien during the
pendency of an appeal. See Neverson v. Farquharson, 

,
38 (1st Cir. 2004) ("The INS immediately took Neverson into custody
and prepared to deport him . . . . On Neverson's emergency motion,
this court issued a provisional stay . . . barring the INS from
deporting Neverson until we could hear and decide his case.").
Garcia suggests as much in his reply brief.

                                        -32-
–- per se amounts to a due process violation, we reject the

argument.         This circuit's requirement is that the defendant must

show prejudice, and we will not presume prejudice from the length

of the delay.        See 

; see also 

    &     n.8   (describing       approximately    two-year    delay   in

furnishing transcripts as "appalling" but rejecting defendant's

claim for lack of prejudice); 

(declining to

hold a nine-month delay unconstitutional, "at least in the absence

of exacerbating factors").             There can be no per se rules on the

length   of       delay    because   this    court,   in   the   exercise   of   its

supervisory authority, is bound by the rule that a showing of

prejudice is ordinarily needed for due process claims.                  See United

States v. Tucker, 

, 676 (9th Cir. 1993) (en banc) ("[A]

federal court may not exercise its supervisory powers to reverse a

conviction absent a showing of prejudice.").

              ii.         Garcia's Other Arguments

              Garcia also argues that he was prejudiced in ways which,

in our view, are simply not cognizable on a due process claim in

this context.         Specifically, he argues that due to the delay, he

has suffered anxiety and "oppressive incarceration" during the

pendency of his appeal.              He bases this argument on decisions by

other courts which have drawn an analogy between the right to a

timely appeal and the right to a speedy trial.                   See, e.g., United

States v. Hawkins, 

, 350 (8th Cir. 1996); United States


                                         -33-
v. Mohawk, 

, 1486 (9th Cir. 1994); Rheuark v. Shaw, 

, 303 (5th Cir. 1980).    We reject the argument and differ

from these courts.   We explain why.

           A due process claim about delays on appeal is not the

same as a Sixth Amendment speedy trial claim.   In Barker v. Wingo,

(1972), a case under the Sixth Amendment, the Supreme

Court identified four criteria, of which prejudice is only one, to

determine when the right to a speedy trial is violated.      

  The Court held that it is possible to have a violation of the

speedy trial right without a specific showing of prejudice. 

  By contrast, there is no Sixth Amendment speedy trial claim

to be made as to appeals, with the possible exception, not involved

here, of interlocutory appeals.    See United States v. Loud Hawk,

, 313-17 (1986); see also United States v. Smith, 

, 206 (6th Cir. 1996) ("The speedy trial guarantee of the

Sixth Amendment applies only to proceedings in the trial court.").

The right of appeal is statutory, and the grant is subject to due

process requirements.    Evitts v. Lucey, 

, 393 (1985).

           In Barker, three categories of potential prejudice were

identified: oppressive pretrial incarceration, anxiety and concern

of the accused, and the possibility that the accused's defense

might be 

.    Those courts that have

accepted the analogy between pretrial delay and appellate delay

have adopted this inquiry almost whole cloth and looked for three


                                 -34-
kinds of potential prejudice from appellate delay: "(1) oppressive

incarceration pending appeal, (2) anxiety and concern of the

convicted   party   awaiting     the    outcome   of   the   appeal,   and    (3)

impairment of the convicted person's grounds for appeal or of the

viability of his defense in case of retrial."            

(internal quotation marks omitted) (quoting 

); see also 

n.8.

            In our view, the due process issues caused by delay on

appeal are more limited than those resulting from delay in the

trial court.      Cf. Ross v. Moffitt, 

, 610 (1974)

(noting, in the context of due process requirements, that "there

are significant differences between the trial and appellate stages

of a criminal proceeding").       And so we reject, at least in cases of

delayed transcripts on appeal, the direct analogy made to tests

involving the Sixth Amendment speedy trial right, which underlies

the so-often articulated three-factor prejudice test quoted above.

Other   courts   have   shared   this    concern.      See,   e.g.,    Cody    v.

Henderson, 

, 719 (2d Cir. 1991) ("Certainly, the

differences in a defendant's situation before trial and after

conviction suggest that at the very least the Barker factors should

not be applied uncritically."); see also Arkin, Speedy Criminal

Appeal: A Right Without A Remedy, 

. Rev. 437, 473-81

(1990) (concluding that the concerns of Barker, and the Barker

test, do not translate to the appellate delay setting).


                                       -35-
           The first two of the adopted Barker prejudice factors

have little rationale in the appellate context.                  A defendant who

has been convicted of a crime no longer enjoys a presumption of

innocence, Herrera v. Collins, 

, 399 (1993), and so his

incarceration      pending     appeal    cannot     itself      be    said   to   be

"oppressive."       Further,     there    are     other   remedies       concerning

conditions of confinement.           The appellant may or may not meet the

requirements      for   bail    on    appeal.13      If    the       conditions   of

incarceration raise Eighth Amendment concerns, habeas corpus is

available.      Similarly, while any defendant who has been convicted

of a crime may experience anxiety during the pendency of the

appeal, this consideration is not useful to evaluating prejudice

for due process purposes.

           Because Garcia has not shown prejudice, we do not reach

the   reasons    for    the    delay.     Sometimes       the    reasons     involve

inadequate resources in the reporting services available to the

district court, or overly busy court reporters; sometimes there are



13
   Indeed, delay in the appeals process may itself strengthen an
appellant's case for having met those requirements, so long as that
delay is not attributable to the appellant. See, e.g., Leigh v.
United States, 

, 997 (1962) (Warren, Circuit Justice)
(granting bail where "th[e] appeal is not frivolous, . . . such
delays as have occurred can hardly be attributed to applicant . . .
[and] [t]he Government does not contend that there is a likelihood
that applicant will flee the jurisdiction."); United States v.
Bentvena, 

, 48 (2d Cir. 1962) (rejecting bail but noting
that "[i]f for any reason there are delays in the hearing of these
appeals for which the appellants are not responsible these motions
may be renewed.").

                                        -36-
other reasons.   The problem of delay in production of transcripts

is a very serious one, but one which cannot be used to benefit a

defendant absent a showing of prejudice.

                                IV.

          Garcia's conviction and sentence are affirmed.




                               -37-