
USCA1 Opinion

	




          June 13, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                       ____________________        No. 94-2011                                  RANDY S. LAPLANTE,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                        FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Randy S. Laplante on brief pro se.            _________________            Donald K. Stern,  United States Attorney, and Mark W.  Pearlstein,            _______________                               ___________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                 Per  Curiam.   Randy LaPlante  appeals a  district court                 ___________            order  that denied  his 28  U.S.C.  2255  motion to  vacate a            sentence  that   was  imposed  as  a   result  of  LaPlante's            violations  of the  terms  of  his  supervised release.    We            affirm.                 As  the  district  court's order  summarizes  LaPlante's            history  and claims,  we will  not repeat  them here.   After            thoroughly  reviewing the  record and  the parties  briefs on            appeal, we  are persuaded  that the district  court correctly            denied relief on  LaPlante's claim  that he  did not  receive            adequate notice  of the conditions of  his supervised release            and his claim that his reentry into the United States did not            violate one of those conditions.  LaPlante has failed to show            cause for  failing to  raise these  claims at  his supervised            release  revocation (SRR)  hearing or  on direct  appeal, and            absent such a showing,  review on the merits under  28 U.S.C.             2255 is barred.  See Knight v. Miller, 37 F.2d 769, 774 (1st                              ___ ______    ______            Cir. 1994); Campino v.  United States, 968 F.2d 187,  190 (2d                        _______     _____________            Cir. 1990).   While LaPlante  argues that he  could not  have            raised  these   claims  sooner   because,  inter   alia,  the                                                       _____   ____            prosecutor  erroneously stated  that the  district judge  had            announced  the  conditions of  LaPlante's  supervised release            when,  in fact, the clerk had made this announcement, none of            LaPlante's reasons constitute the "cause" required to  obtain            relief on these claims under 28  U.S.C.  2255.  See Murray v.                                                            ___ ______            Carrier, 477 U.S. 478,  488 (1986); Magee v.  Harshbarger, 16            _______                             _____     ___________            F.3d 469, 472 (1st Cir. 1994).1                 However,  we note  that LaPlante  at least  arguably had            cause for not previously raising his claim that his  sentence            is   unlawfully  based   on  certain   invalid  Massachusetts            convictions.    It  appears that,  at  the  time  of the  SRR            hearing, LaPlante was not aware that one of those convictions            (i.e.,  the  Brookline district  court  conviction)  had been            vacated one week  earlier.   Thus, LaPlante was  not able  to            bring  this  to the  district  court's attention  at  the SRR            hearing.   Nevertheless, this claim fails on its merits. Even                                            ____________________            1.  Moreover,  while we need  not decide the  merits of these            claims,  we note  that  both  have  serious  flaws.    It  is            undisputed  that   LaPlante  received  oral  notice   of  the            conditions  of   his  supervised  release   at  his   initial            sentencing hearing.   Those conditions were  not complicated.            LaPlante later  received written notice that  his reentry was            prohibited absent the  Attorney General's permission when  he            signed a  "Notice of  Country to  which Deportation has  been            Directed and Penalty for  Reentry" (hereafter "Notice").  Yet            at  the SRR hearing,  LaPlante conceded that  he violated the            special  conditions that  prohibited  his reentry  absent the            Attorney General's  permission and his use of a false drivers            license.  These circumstances indicate that LaPlante received            adequate notice  of the special conditions  that governed his            supervised release. See United States v. Felix, 994 F.2d 550,                                ___ _____________    _____            552 (8th Cir. 1993);  United States v. Johnson, 763  F. Supp.                                  _____________    _______            900, 903 (W.D. Texas 1991). We also  note that in signing the            foregoing "Notice,"  LaPlante expressly waived  his right not            to be deported until 72 hours after the service of the  final            order  of deportation  and requested  deportation as  soon as            possible.   But  8  C.F.R.   3.4  provides  that  an  alien's            departure from the United States  subsequent to the taking of            an appeal but before  a decision thereon "shall  constitute a            withdrawal of the appeal...."  It thus appears  that LaPlante            withdrew his appeal  of the deportation order when  he signed            the "Notice" requesting immediate deportation.                                              -3-            if the district court had ignored this conviction, this would            only have resulted  in a one point deduction  from LaPlante's            criminal history score.   His criminal history category would            not have changed. It is undisputed that the second conviction            that LaPlante says is invalid is  the subject of a motion  to            vacate that  is pending in  the West Roxbury  district court.            While  LaPlante  contends  that  we  should  hold  that  this            conviction is "presumptively  void" and deduct an  additional            two  points from his criminal history score, we have no basis            for so holding.2   Accordingly, the judgment of  the district            court is affirmed.                     ________                                            ____________________            2.  Contrary to LaPlante's argument on appeal, neither United                                                                   ______            States v. Isaacs,  14 F.3d 106 (1st Cir. 1994), nor Custis v.            ______    ______                                    ______            United  States, 114 S. Ct. 1732, 1734 (1994), authorizes this            ______________            court to hold that the West Roxbury district court conviction            is "presumptively void" simply  because LaPlante may not have            been warned  that he  could be deported  as a  result of  his            guilty plea.   Rather, Custis "significantly  restricted" the                                   ______            circumstances under which a  prior conviction may be held  to            be void. See United States v.  Cordero, 42 F.3d 697, 701 (1st                     ___ _____________     _______            Cir. 1994)(noting that Custis prohibits collateral attacks on                                   ______            prior state-court convictions  unless conviction was obtained            in violation  of the  right to counsel).  Those circumstances            are not present here.                                         -4-
