
USCA1 Opinion

	




          August 3, 1995        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-2031                                    UNITED STATES,                                      Appellee,                                          v.                              JUAN MOISES PEREZ-MENDEZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                       [Hon. Mary M. Lisi, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                    Circuit Judge.                                    _____________                                 ____________________               Randy Olen and John M. Cicilline on brief for appellant.               __________     _________________               Sheldon  Whitehouse,  United  States Attorney,  Margaret  E.               ___________________                             ____________          Curran and Michael E.  Davitt, Assistant United States Attorneys,          ______     __________________          on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.  Defendant-appellant Juan Moises Perez-                      __________            Mendez ("Perez")  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                    ____________________________                 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                                         -2-            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                                                                   ______            States v. Cordero, 42 F.3d  697, 699 (1st Cir. 1994).   There            ______    _______            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            ___ __________     _____            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                                                                    _____            v. New York, 423  U.S. 61, 62-63 (1975) (holding  that guilty               ________            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                                         -3-            the charge against him cannot be satisfied.  In United States                                                            _____________            v. Mendoza-Lopez, 481 U.S. 828, 839 (1987), the Supreme Court               _____________            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                               ___            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),                     _____________    _____            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.                                                            ___            Accordingly, Perez  has waived his  right to appeal  from the                                         -4-            district  court's  denial  of   his  motion  to  dismiss  the            indictment. 1                 B. Sentencing                    __________                 Perez attempts to challenge the district court's failure            to  grant  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.                                                        ______________            Morrison,  46  F.3d  127, 130  (1st  Cir.  1995).   There  is            ________            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                                                     ___            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                                         __            jurisdiction to review the departure decision.                 Perez' conviction  and sentence are  summarily affirmed.                                                                ________            See Loc. R. 27.1.            ___                                            ____________________            1.  Were  we to  consider  the merits,  we  would uphold  the            district  court's  denial of  Perez'  motion  to dismiss  the            indictment.                                         -5-
