      [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

         United States Court of Appeals
                    For the First Circuit


No. 98-2163

                        UNITED STATES,

                          Appellee,

                              v.

      JUAN MOLINUEVO-POLANCO, a/k/a Francisco A. Caban,
                       a/k/a Juan Caba,

                    Defendant, Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

      [Hon. Juan M. Perez-Gimenez, U.S. District Judge]


                            Before

                   Boudin, Stahl and Lynch,
                       Circuit Judges.




     Ramon Garcia on brief for appellant.
     Guillermo Gil, United States Attorney, Jorge E. Vega-
Pacheco, Assistant United States Attorney, and Camille Velez-
Rive, Assistant United States Attorney, on brief for appellee.




                        March 8, 2000
             Per Curiam.    Appellant Juan Molinuevo-Polanco pled

 guilty to one count of illegally reentering this country

 after   a   prior   conviction   for    an   aggravated   felony    and

 deportation in violation of 8 U.S.C. § 1326(b).             Prior to

 sentencing, he never sought to withdraw his guilty plea, but

 this is the relief he seeks on appeal.          He contends that his

 Fifth   Amendment    due   process     rights   were   violated    when

 certain government agents failed to advise him of his rights

 under Miranda v. Arizona, 384 U.S. 436 (1966), and failed to

 advise him of his rights under the Vienna Convention on

 Consular Relations or to notify his consulate of his arrest.

 The thrust of his argument appears to be that he would not

 have made certain incriminating statements to government

 agents, or would not have pled guilty, if he had received

 the requisite Miranda warnings and if his Vienna Convention

 rights had been observed.            We affirm for the following

 reasons.1

             1.   We think that the government has adequately

 explained in its brief why the Fifth Amendment due process



    1We also grant Molinuevo's motion to submit his appeal to
the court on the basis of the parties' briefs and without oral
argument.

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claim fails, at least insofar as it is based on the alleged

violation of the Vienna Convention.        We agree that claimant

has not made the requisite showing of prejudice.           See United

States v. Ademaj, 170 F.3d 58, 67 (1st Cir.), cert. denied,

120 S. Ct. 206 (1999) (rejecting Fifth Amendment due process

claim, based on violation of Vienna Convention, on plain

error review because appellant had not shown prejudice due

to   the   violation).      Accordingly,   the    extent      to   which

appellant may or may not have enforceable rights under the

Vienna Convention is irrelevant here.        See generally United

States v. Li, Nos. 97-2034 et al. (1st Cir. Feb. 29, 2000)

(en banc).

           2.     There is no need to consider the Miranda claim,

although    the    government   submits   proof   that   it    advised

Molinuevo of his Miranda rights before he admitted his guilt

to government agents.      By pleading guilty, Molinuevo waived

any Miranda violation.          See United States v. Cordero, 42

F.3d 697, 699 (1st Cir. 1994) (noting that an unconditional

guilty plea waives prior non-jurisdictional constitutional

errors and rejecting contention that a claim for suppression

of evidence is a non-waived jurisdictional issue); Acevedo-

Ramos v. United States, 961 F.2d 305, 307-09 (1st Cir. 1992)




                                  -3-
(concluding that guilty plea waivers of affirmative defenses

to prosecution need not be explicit).

               In any event, even if we were to consider his claim

on this undeveloped record (the appellant never filed a

motion to suppress below and no suppression hearing based on

any Miranda violation was ever held), we could not find that

the alleged Miranda violation was plain error.                    For all we

know, Molinuevo may have impliedly or even explicitly waived

his Miranda rights before admitting his guilt.                     See United

States    v.        Nunez,    19    F.3d   719,   723      (1st   Cir.     1994)

(concluding, after assuming that plain error review of a

waived suppression claim was appropriate, that plain error

could    not    be    shown   given     the   lack    of   adequate      factual

development in the district court); accord United States v.

Davenport, 986 F.2d 1047, 1048-49 (7th Cir. 1993).

               3.    Molinuevo has not explicitly contended that he

did not enter his guilty plea voluntarily, knowingly and

intelligently, and he has not challenged the validity of his

plea hearing under Fed. R. Crim. P. 11.                 Accordingly, he has

not shown that vacating his guilty plea on direct appeal

would be appropriate.              See United States v. Noriega-Millan,

110   F.3d     162,    166    (1st    Cir.    1997)   (indicating        that   a

criminal defendant seeking to withdraw his guilty plea for


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the   first   time   on    direct   appeal    would   have       to    show   a

"substantial defect in the Rule 11 proceeding") (citation

omitted); United States v. McKelvey, No. 99-1264, slip op.

at 6 (1st Cir. Feb. 11, 2000) (indicating that a criminal

defendant seeking to withdraw his guilty plea on direct

appeal would have to show "a fundamental defect [in his plea

proceeding]      which     inherently      results      in   a        complete

miscarriage of justice or an omission inconsistent with the

rudimentary      demands    of   fair     procedure")    (citation         and

internal quotation marks omitted).

            4.   We note our doubt that Molinuevo's allegedly

unconstitutional confession factored into his decision to

plead   guilty.      As     an   undisputed    investigative           report

appended to the government's brief shows, the government had

ample evidence of his guilt apart from the confession.

Moreover, by the time he pled guilty he was represented by

an attorney who would seem better able to advise him in

connection with his plea than consular authorities.

            The conviction and sentence are affirmed. See Loc.

R. 27(c).




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