Filed: Jan. 17, 2003
Latest Update: Feb. 22, 2020
Summary: Pineda was deported to El Salvador.September of 1996 and was arrested on another state charge in 1997.issued the final order in accordance with INS regulations.district court.findings of fact, however, are subject to clear error review.United States v. Martínez-Molina, 64 F.3d 719, 726 (1st Cir.
Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 01-2240
UNITED STATES OF AMERICA,
Appellee,
v.
RAMÓN PINEDA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Torruella, Circuit Judge,
Cyr and Stahl, Senior Circuit Judges.
Mark L. Stevens, on brief, for appellant.
Theodore D. Chuang, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, were on brief,
for appellee.
January 17, 2003
Per Curiam. Defendant-appellant Ramón Pineda appeals the
district court's acceptance of his guilty plea at his Rule 11
hearing, and the denial of his motion to suppress evidence of his
prior deportation. After careful review of the briefs and record
in this case, we affirm.
I. The Facts
The district court found the pertinent facts to be as
follows. Pineda, a citizen of El Salvador, immigrated to the
United States in 1980. In 1989, he married an American citizen and
took steps to regularize his immigration status. His residency
status was revoked in 1992 because his then-estranged wife failed
to attend an Immigration and Naturalization Service ("INS") marital
interview. On November 5, 1993, the INS served Pineda with an
Order to Show Cause. The ensuing deportation proceedings
culminated on July 22, 1994, when an Immigration Judge ("IJ") found
Pineda deportable and ineligible for discretionary relief under
§ 212(c). The IJ granted Pineda a forty-five day stay of
deportation to permit him to file an asylum claim. This stay was
extended twice, but Pineda never filed an asylum claim.
In September 1994, after the expiration of the initial
forty-five day stay, Pineda was incarcerated on a state rape
charge. On March 2, 1995, the IJ ruled that Pineda's failure to
file the asylum claim constituted a waiver and abandonment.
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Consequently, he ordered Pineda deported and, on June 17, 1996,
Pineda was deported to El Salvador.
Pineda re-entered the United States illegally in
September of 1996 and was arrested on another state charge in 1997.
While in state custody, Pineda was indicted for one count of
unlawful reentry to the United States in violation of 8 U.S.C.
§ 1326. On August 2, 2000, Pineda filed a motion to suppress
evidence of his prior deportation on due process grounds. While
the suppression motion was pending, the indictment was superseded
by one charging illegal entry by an aggravated felon after
deportation in violation of 8 U.S.C. § 1326.
On January 9, 2001, the district court denied Pineda's
motion to suppress evidence of his prior deportation. First, the
district court held that although Pineda was not orally advised of
his right to appeal the deportation order at the March 2, 1995
hearing, the fact that he received written notice of that right
satisfied the requirements of both INS regulations and due process
in this case. The district court rejected the claim that oral
colloquy regarding appeal rights is mandatory, holding that such
inquiry is only required when "the IJ is seeking to extract a
waiver of an alien's right of appeal," which did not occur in the
present case.
Second, the district court held that although Pineda was
never advised -- pursuant to Article 36 of the Vienna Convention on
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Consular Relations, April 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261,
1967 WL 18349 (ratified November 24, 1969) ("Vienna Convention") --
of the right of an arrested alien to contact consular officials
from his native country, such a failure does not constitute grounds
for suppression because "there is no general exclusionary rule for
international law violations," and because the Vienna Convention
provides no specific judicial remedy for a violation and confers no
private right of action for redress of a violation. Cf. United
States v. Li, 206 F.3d 56 (2000) (en banc).
Third, the district court found that, contrary to
Pineda's claim, Pineda was not deported in absentia. Pineda
received a deportation hearing on July 22, 1994, at which he was
warned that unless he filed an asylum application within an
allotted period of time, the IJ would issue a deportation order
without further hearing. Thus, the district court concluded that
when the IJ issued the deportation order on March 2, 1995, the IJ
simply "did what he told Pineda that he would do" and lawfully
issued the final order in accordance with INS regulations. Having
found no fundamental flaw in the deportation proceedings, the
district court denied the motion to suppress.
On April 17, 2001, Pineda, pursuant to a plea agreement,
entered a conditional plea of guilty to the charge of illegal
reentry by an aggravated felon after deportation. Pursuant to Rule
11(a)(2) of the Federal Rules of Criminal Procedure, Pineda
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reserved his right to appeal the district court's denial of the
motion to suppress. Following the plea colloquy, the district
court found that the defendant understood the nature of the charge
and that his plea was voluntary, intelligent, and knowing. On
August 21, 2001, Pineda was sentenced to seventy months of
imprisonment, two years of supervised relief, and a $100.00 special
assessment, but he was not fined.
II. The Guilty Plea
We review the acceptance of the guilty plea for plain
error because Pineda did not seek to withdraw his plea in the
district court. See United States v. Vonn, 535 U.S. 55,
122 S. Ct.
1043, 1046 (2002); United States v. Gandía-Maysonet,
227 F.3d 1, 5
(1st Cir. 2000). We consider the totality of the circumstances to
determine whether such plain error exists and to determine whether
the guilty plea is voluntary, intelligent, and knowing within the
framework of Rule 11. United States v. Hernández-Wilson,
186 F.3d
1, 12 (1st Cir. 1999); United States v. Cotal-Crespo,
47 F.3d 1, 3
(1st Cir. 1995).
In order to be acceptable, a guilty plea must be found to
comport with the three core concerns of Rule 11: (1) the absence of
coercion; (2) the defendant's understanding of the nature of the
charges against him; and (3) the defendant's understanding of the
consequences of his guilty plea. United States v. Isom, 85 F.3d
831, 835 (1st Cir. 1996);
Cotal-Crespo, 47 F.3d at 4.
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The thrust of Pineda's argument is that the Rule 11
colloquy was inadequate as evidenced by Pineda's ambivalent answers
and questions to the judge. After careful consideration of the
arguments presented by the parties in their briefs and at oral
argument and review of the record, we find that each of the three
core Rule 11 concerns have been met and affirm the district court's
acceptance of the guilty plea as voluntary, intelligent, and
knowing. We briefly address each of the Rule 11 concerns.
First, the district court properly found an absence of
coercion because Pineda ultimately responded unequivocally that he
had not been coerced, and further because Pineda's responses
provided no grounds for believing his guilty plea was indeed
coerced.
Second, the district court correctly found that Pineda
understood the charges against him. We agree with the government
that the source of any seeming confusion on Pineda's part arose
from the fact that Pineda wanted to properly preserve his right to
appeal the ruling on the motion to suppress because he believed his
deportation proceeding violated due process. Pineda nonetheless
understood the charges against him and ultimately admitted that he
had committed the offense conduct described by the government. See
Cotal-Crespo, 47 F.3d at 6 (holding that when the government sets
forth the elements of the offense and the defendant's conduct, a
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defendant's admission that the allegations are true suffices to
show he understands the charges).
Finally, the district court correctly found that Pineda
understood the consequences of his guilty plea. In response to
Pineda's questions, the court thoroughly explained the consequences
of pleading guilty. Once again, Pineda's main concern was his
ability to appeal the deportation issue, which the court explained
to him would be possible.
III. The Motion to Suppress
The motion to suppress evidence of Pineda's prior
deportation presents a mixed question of law and fact, and the
ultimate determination of constitutionality is subject to de novo
review. Ornelas v. United States, 517 U.S. 690, 699 (1996); United
States v. Goldman,
41 F.3d 785, 787 (1st Cir. 1994). Any related
findings of fact, however, are subject to clear error review.
United States v. Martínez-Molina,
64 F.3d 719, 726 (1st Cir. 1995).
Pineda argues that his prior deportation is fundamentally
flawed because he was: (1) not properly notified of his right to
appeal; (2) improperly deported in absentia; and (3) not notified
of his right to contact the consulate of his home country of El
Salvador. After careful consideration of the arguments presented
and review of the record, we agree with the reasoning presented in
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the district court's memorandum and affirm the denial of the motion
to suppress.
Affirmed.
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