                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 94-1115

                          UNITED STATES,

                            Appellee,

                                v.

                        DEVON WAYNE SMITH,

                      Defendant - Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. William G. Young, U.S. District Judge]
                                                      

                                           

                              Before

                     Torruella, Chief Judge,
                                           

                      Boudin, Circuit Judge,
                                           

                   and Keeton,* District Judge.
                                              

                                           

     Peter Bruce Krupp,  Federal Defender Office,  by Appointment
                      
of the Court, for appellant.
     James Francis Lang, Assistant  United States Attorney,  with
                       
whom  Donald K. Stern, United  States Attorney, was  on brief for
                     
appellee.

                                           

                        September 7, 1994
                                           

                    

*  Of the District of Massachusetts, sitting by designation.

          TORRUELLA,  Chief  Judge.    Defendant-Appellant  Devon
                                  

Wayne Smith entered a conditional plea of guilty to an indictment

charging  him  with   illegally  reentering  the  United   States

following  a deportation order subsequent  to a conviction for an

aggravated  felony,  in  violation  of 8  U.S.C.      1326(a) and

(b)(2).  On appeal,  Smith asserts that the district  court erred

in  denying  his  motion to  dismiss  (1)  the entire  indictment

because  the government unduly burdened his ability to appeal the

deportation order  underlying the offense,  and (2) that  part of

the indictment  based on  his prior aggravated  felony conviction

because that conviction was vacated after the government indicted

Smith in this case.  We affirm.

                          I.  BACKGROUND

          On  January  5,  1983,  Smith, a  citizen  of  Jamaica,

entered the United  States at  Miami, Florida, as  a visitor  for

pleasure with authorization to  stay until the end of  the month.

On  October  1,  1984,  Smith  was  charged  with  possession  of

marijuana with intent to distribute in Dorchester, Massachusetts.

Smith  was convicted  of this offense  in Boston  Municipal Court

("BMC") on January 30, 1985.

          On August  28, 1985, the Immigration and Naturalization

Service ("INS") initiated  deportation proceedings against  Smith

on  the   grounds  that  Smith's  conviction   subjected  him  to

deportation  under  Section  241(a)(11)  of the  Immigration  and

Nationality  Act  ("INA"),  8  U.S.C.     1251(a)(11).    Several

hearings were  held on this matter beginning in July of 1987.  At

                               -2-

one  of  these hearings,  the  INS brought  an  additional charge

against Smith:  remaining in  the United  States longer  than the

one-month period of time granted upon his original  admission, an

offense  subjecting Smith to  deportation under Section 241(a)(2)

of  the  INA,  8 U.S.C.    1251(a)(2).    Smith  admitted he  was

deportable  on  this  additional  ground, but  he  contested  his

deportability on the original    241(a)(11) charge because he was

attempting  to have the BMC  conviction vacated.   Smith chose to

challenge  the    241(a)(11)  charge, despite  the  fact that  he

admitted to  his deportability on other  grounds, because certain

forms  of relief  that are  available under    241(a)(2)  are not

available  once   a  defendant   is  found  deportable   under   

241(a)(11).

          Smith's initial  efforts to  vacate the BMC  conviction

were  unsuccessful, and  on June  30, 1988, an  immigration judge

found  Smith  was  deportable  under  both      241(a)(2)  and   

241(a)(11) and ordered Smith's  deportation.  Smith appealed this

ruling on the  ground that  the judge improperly  relied upon  an

uncertified copy of the BMC conviction.

          On September  25, 1989,  while the appeal  was pending,

INS agents arrested  Smith for  an alleged gun  offense.   Agents

found two 9 mm handguns in Smith's possession after responding to

information provided  by the Mirimar, Florida,  Police Department

that  Smith had  been interviewed  and found to  possess weapons.

The  INS knew  that  Smith  had  been  convicted  of  carrying  a

concealed  firearm  in  October   of  1988  (Smith  pleaded  nolo
                                                                 

                               -3-

contendere  to that  charge  and  an  adjudication of  guilt  was
          

"stayed and withheld")  and that Smith had  been briefly detained

by the  INS in May of 1989  after being found in  possession of a

knife during an INS sweep.

          After  the September  1989 arrest,  the INS  took Smith

into custody  and held him  in lieu  of posting  a $25,000  bond.

Smith was never officially charged for the gun offense underlying

the arrest.  Smith then  moved for a bond determination.   An INS

hearing officer ruled  on the  motion and ordered  that Smith  be

detained without bond.  Smith then requested a redetermination of

the ruling before  an immigration  judge.  On  October 18,  1989,

following a hearing, an  immigration judge denied Smith's request

for a change in his custody status.

          Central to  this appeal is Smith's  allegation that the

INS  detained  him without  bail in  order  to unduly  burden his

ability to pursue his  pending immigration appeal, and  to coerce

Smith  into waving that appeal.  Smith offered no direct evidence

to support this allegation.  He does point out, however, that the

record does not indicate that Smith  was ever notified of the gun

charges  against him -- charges which were never formally made in

the first place -- or that Smith was ever given an opportunity to

be heard  on the  alleged gun  charges underlying his  detention.

Smith also points out  that, at some  point in November of  1989,

Smith was  transferred from an  INS detention center  in Florida,

where  his family, business, and lawyer were located, to El Paso,

Texas.  Smith's counsel affirmatively asserts in the brief and in

                               -4-

prior  motions   before  the  court  that  Smith   never  had  an

opportunity to rebut the  gun charges, but this assertion  is not

supported by an affidavit from Smith himself, or from anyone else

involved in the bond hearings.1  

          In  any   event,  faced   with  a  lengthy   period  of

incarceration  during  the pendency  of  his immigration  appeal,

Smith, in consultation with  his attorney in El Paso,  decided to

withdraw  his  appeal  and  submit  to  deportation.    A  motion

withdrawing the  appeal, signed  by Smith  and his  attorney, was

filed on November 21, 1989, and Smith was deported to Jamaica.

          In March of 1992, Smith  reentered the United States at

Miami.  He was subsequently arrested by INS agents in Dorchester,

Massachusetts  on  March 22,  1993.   A  federal grand  jury then

returned  the  indictment  for  this   case  on  May  13,   1993.

Meanwhile,   in  October   of  1993,   Smith's  current   counsel

successfully vacated the original  1985 BMC conviction upon which

Smith's deportation was originally based.

          Smith moved  to dismiss  the indictment in  the present

case  by collaterally  attacking  the deportation  order and  the

aggravated felony underlying the charged offenses.  A hearing was

                    

1  There is no evidence in the record concerning  what was argued
before the immigration  judge or what basis  underlay the judge's
decision to uphold the  revocation of Smith's bail.   Thus, there
is no evidence indicating whether or not Smith was actually heard
on  the  gun  charges.    However,  Smith's  motion  for  a  bond
determination does acknowledge that Smith was detained by the INS
on  the basis  of a  gun charge.   Although  not critical  to the
resolution of  this appeal, one  could reasonably infer  from his
bond motion that Smith  did have an opportunity to  challenge the
gun charges at the bond hearings.

                               -5-

scheduled, but  Smith did not request an  evidentiary hearing for
                                                     

the  motion.    Following a  hearing  on  December  9, 1993,  the

district court  denied Smith's motion to  dismiss the indictment.

Smith's   counsel  subsequently  requested  approval  of  several

subpoenas  for   the  purpose  of  collecting   evidence  on  the

collateral attack issue with  the intent of litigating the  issue

at  trial.   Then, on  January 12,  1994,  the court  granted the

government's motion to exclude  all evidence of the circumstances

surrounding the  validity of the deportation  proceedings.  Later

that  same  day,  Smith  entered  a  conditional  plea  of guilty

pursuant to Fed. R.  Crim. P. 11(a)(2), reserving for  appeal the

issues presented here.

                          II.  ANALYSIS

A.  Collateral Attack on Deportation: Coerced Waiver of Appeal
                                                              

          To establish  an offense  under   1326,  the government

must  prove that the defendant  has been previously  deported.  8

U.S.C.   1326(a)(1).  A defendant accused of violating   1326 may

collaterally  attack  the  underlying  deportation  order if  the

defendant can show that he or she was deprived of the opportunity

for meaningful judicial review of that deportation order.  United
                                                                 

States v. Mendoza-L pez, 481 U.S. 828, 839 (1987)  ("Depriving an
                       

alien  of  the right  to have  the  disposition in  a deportation

hearing reviewed in a judicial forum requires, at a minimum, that

review be  made available in  any subsequent proceeding  in which

the  result of the deportation proceeding is used to establish an

element of a criminal offense.").

                               -6-

          Smith argues that his  right to collaterally attack the

underlying   deportation   under  Mendoza-L pez   was  improperly
                                               

foreclosed by the district court.  Smith originally  contended in

his  motion to dismiss that  the INS's detention  of Smith for an

uncharged gun offense effectively  denied him the opportunity for

meaningful judicial  review of  the  deportation proceeding,  and

therefore, the proceeding cannot properly serve  as the basis for

his indictment under 8 U.S.C.   1326.  After denying this motion,

the court ruled  that Smith  could not present  evidence on  this

issue  at  trial.   We  find  no error  in  the district  court's

actions.

          We have recently held that a defendant who deliberately

and voluntarily waived  his right to  appeal a prior  deportation

order  under the advice of counsel, is not deprived of meaningful

judicial  review  and  thus   may  not  collaterally  attack  the

deportation order during the   1326 criminal proceedings.  United
                                                                 

States v. Smith, 14 F.3d 662, 665 (1st Cir.  1994); United States
                                                                 

v.  Vieira-Candelario, 6  F.3d 12, 15  (1st Cir. 1993).   In this
                     

case, Smith withdrew  his appeal of  the deportation order  under

the advice of counsel.  Smith argues, however, that the waiver of

his  appeal was  not  deliberate and  voluntary,  but rather  was

coerced, and thus  his case is distinguishable from the situation

in  Smith and Vieira-Candelario.   According to  Smith, the INS's
                               

action of imprisoning him  without allowing him to challenge  the

reason  for  his incarceration,  unconstitutionally  burdened his

ability to appeal because  it required him to suffer  an unlawful

                               -7-

imprisonment  in order  to pursue his  right to  judicial review.

The  only way to gain his rightful  freedom, Smith argues, was by

waiving his appeal and accepting deportation.

          There are  a  couple of  subsidiary issues  surrounding

Smith's appeal.   The first  one is  whether any waiver,  even if

coerced  under the  most horrendous  and fundamentally  unfair of

circumstances, would preclude a Mendoza-L pez-type challenge to a
                                             

subsequent criminal indictment under   1326.  We must assume that

there are some  circumstances in which a  coerced and involuntary

waiver of an appeal  constitutes a denial of the  opportunity for

meaningful  judicial review and thus cannot serve as a bar, under

Smith  and  Vieira-Candelario, to  a  collateral  challenge of  a
                             

deportation  order.   See  Mendoza-L pez,  481 U.S.  at  839 n.17
                                        

(noting that abuses such  as coerced confessions, biased judging,

and knowing  use of perjured testimony "could operate, under some

circumstances,   to   deny    effective   judicial   review    of

administrative determinations").

          The   next  question   is   whether  Smith's   specific

allegations,  if true,  could  constitute  sufficiently  coercive

circumstances  so  as to  effectively  deny  Smith of  meaningful

judicial review of his deportation order despite his waiver of an

appeal.  To the  extent Smith alleges that the  INS purposefully,

as opposed  to mistakenly or inadvertently,  detained him without

probable cause, and without formally charging him or allowing him

to subsequently challenge the charges for  which he was allegedly

detained,  for  the deliberate  purpose  of  pressuring him  into

                               -8-

withdrawing  his  appeal  and   expediting  his  deportation,  he

presents  allegations that  conceivably  might  be sufficient  to

raise  a  Mendoza-L pez  issue  in a  subsequent  criminal  case.
                       

Although Smith  could still  pursue his  appeal while in  prison,

even under such egregious circumstances as the ones he alleges, a

court might not be precluded from finding that such circumstances

violated  the  requirement  that  Smith  be  afforded  meaningful

judicial review.

          That  leaves  the  issue of  whether  Smith  adequately

presented the matter  to the district court  in a way  that would

allow  the court to make  a finding that  Smith's allegations are

true.  There  is no evidence in the record  to support any aspect

of  Smith's  allegations that  he  was coerced  into  waiving his

appeal  of the deportation order.  On the contrary, what evidence

does exist indicates that Smith was lawfully detained for weapons

violations, that he was given two  opportunities to challenge his

detention, including  a hearing before an  immigration judge, and

that the INS  reasonably believed  it had cause  to detain  Smith

because Smith had been picked up for previous weapons  violations

and because  he was found with two 9 mm  handguns.  The fact that

no formal gun  charges were  brought against Smith  and the  fact

that  Smith was transferred from Miami to  El Paso do not rise to

the level of evidence of deliberate coercion by the INS.  In sum,

there  is no evidence to support a  finding that Smith was denied

meaningful judicial review of his deportation order.

          Smith nevertheless contends that (1) the district court

                               -9-

did not even  consider the merits of his  coercion claim, and (2)

he  tried to present evidence  in support of  his allegations but

the  district court prevented  him from doing so.   As an initial

matter,  the court  made no  factual findings  or  explicit legal

findings  when  it denied  Smith's motion  to  dismiss.   At that

point,  however, Smith had presented  no evidence --  not even an

affidavit  from Smith himself -- to support his claim of coercion

by the INS.  Smith also  failed to request an evidentiary hearing

in conjunction with his motion to dismiss.  Having thus failed to

establish any factual basis for his claim, the district court was

warranted in rejecting Smith's motion  for dismissal out of hand.

See D. Mass. Loc.  R. 7.1(A)(2); United States v.  Levasseur, 704
                                                            

F. Supp. 1158, 1168 (D.Mass. 1989).

          Smith  argues  that even  if  his  motion was  properly

dismissed,  he still had a right to present evidence of the INS's

coercion  of Smith at trial  as an affirmative  defense under the

Mendoza-L pez  doctrine.  We find no support for this contention.
             

As with  motions  to suppress  evidence,  alleged  constitutional

infirmities in matters collateral to the elements of the  charged

offense involve complex questions  of both law and fact  that are

appropriately determined  by the court in  a preliminary hearing.

Cf.  Mendoza-L pez,  481 U.S.  at  832  (affirming circuit  court
                  

opinion  that found due  process required a  "pretrial review" of

the underlying deportation).  Although the Ninth Circuit has held

that the Mendoza-L pez issue must go to the jury if the issue has
                      

not  previously been  addressed  before trial,  United States  v.
                                                             

                               -10-

Ibarra, 3 F.3d 1333, 1334 (9th Cir. 1993) -- a ruling about which
      

we  express no  opinion  at  this  point  --  even  that  opinion

foreclosed  a relitigation of the issue if already decided by the
                

court  on a  pretrial motion.   Id.   In this  case, the district
                                  

court granted a preliminary hearing on the Mendoza-L pez issue at
                                                        

which  Smith had the opportunity to fully and fairly litigate the

issue   before  the  court.    If  Smith  failed  to  request  an

evidentiary hearing or otherwise failed to take full advantage of

the  opportunity afforded  to  him by  the  district court,  such

failure  was of his own doing and  does not, by itself, warrant a

second bite at the apple.  Under such circumstances, Smith cannot

assert a  right to relitigate  the Mendoza-L pez issue  at trial.
                                                

Therefore,  the  court's dismissal  of  Smith's  motion, and  its

subsequent   exclusion   of   evidence   pertaining   to  Smith's

deportation proceedings are affirmed.

B.  Attack on Aggravated Felony Portion of the Indictment
                                                         

          In  his motion to dismiss, Smith also argued that proof

of  a  prior aggravated  felony conviction  is  an element  of an

offense  under  8 U.S.C.     1326(b)(2).2   Because  Smith's only

                    

2  8 U.S.C.   1326 provides in relevant part:

            (a) Subject  to  subsection (b)  of  this
            section, any alien who --

            (1) has  been  arrested and  deported  or
            excluded and deported, and thereafter
            (2) enters, attempts  to enter, or is  at
            any time found in,  the United States . .
            .

            shall   be  fined  under   Title  18,  or
            imprisoned  not more  than  2  years,  or

                               -11-

aggravated felony conviction had been vacated by the state court,

Smith argued in the motion that the district court should dismiss

that  part  of the  indictment  which  referenced the  aggravated

felony provision,   1326(b)(2).  The district court rejected this

argument when it denied the motion.

          Subsequent to the proceedings in the district court, we

decided United States  v. Forbes,  16 F.3d  1294, 1297-1300  (1st
                                

Cir. 1994),  in which we held that   1326(b) does not establish a

separate  offense,   but  rather   simply  provides   a  sentence

enhancement for those convicted under   1326(a) (the offense  for

reentry into  the United  States after  being deported),  who had

been convicted of an  aggravated felony before their deportation.

That  case controls the present issue.  Section 1326(b)(2) is not

a separate element of  an offense and therefore, the  vacation of

Smith's underlying  felony conviction cannot provide  grounds for

dismissal of the  indictment.  The  district court's ruling  must

therefore be upheld.

          Smith urges us to reconsider our holding in Forbes.  We
                                                            

decline to upset that decision and, in any event, are not free to

do so as  a newly constituted  panel.  Broderick  v. Roache,  996
                                                           

                    

            both.

            (b)  Notwithstanding  subsection  (a)  of
            this section,  in the  case of  any alien
            described in such subsection --

            (2) whose deportation was subsequent to a
            conviction    for   commission    of   an
            aggravated  felony,  such alien  shall be
            fined  under  such Title,  imprisoned not
            more than 15 years, or both.

                               -12-

F.2d 1294, 1298  (1st Cir. 1993).  Furthermore,  we note that the

district  court prudently  sentenced Smith  as if  his aggravated

felony did not exist, by implementing a downward  departure that,

according to the court, "in effect strips out the conviction that

has been vacated."  Thus, even if the district court had erred in

refusing  to  dismiss  the   aggravated  felony  portion  of  the

indictment, which it did not, that error would have been harmless

because  Smith was  never  sentenced on  the allegedly  erroneous

count.  United States v. Long, 894 F.2d 101, 108 (5th Cir. 1990).
                             

          Affirmed.
                  

                               -13-
