                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                               JUL 24 1997
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

               v.                                          No. 97-4017
                                                       (D.C. No. 96-CR-109)
 SERGIO LOPEZ-SERRATO, aka                                   (D. Utah)
 Alfonso Beltran-Sanchez,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is

ordered submitted without oral argument.




      *
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      Defendant Sergio Lopez-Serrato appeals the district court's denial of his

motion to dismiss an indictment charging him with reentry after deportation

subsequent to conviction of an aggravated felony, contrary to 8 U.S.C. § 1326.

We affirm.

                                         I.

      Defendant has been deported from the United States under various names

on four occasions since 1992. He was deported most recently on March 22, 1995,

following conviction of an aggravated felony as defined in the Immigration and

Nationality Act, 8 U.S.C. § 1101(a)(43)--possession of marijuana for sale in

California. It is the policy of Immigration and Naturalization Service to serve

INS Form I-294 on all deportees, advising them of the requirement to obtain

permission before reentry and of penalties faced upon reentry without permission.

Although defendant received the form at his three prior deportations, he did not

receive the form in connection with his most recent deportation. Defendant was

found in the United States in January 1996 and was indicted for violation of 8

U.S.C. § 1326.

      Defendant moved for dismissal of the indictment, arguing INS's failure to

serve him with the I-294 form violated his right to due process of law. He argued

that he would not have reentered the United States if he had been informed of the

penalty he would face. Defendant entered a conditional plea of guilty, reserving


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the right to pursue his motion to dismiss. The magistrate judge recommended that

the motion to dismiss be denied. Defendant did not file an objection to the

magistrate's recommendation, but rather appeals from that recommendation.

                                         II.

      Failure to object to a magistrate's recommendation amounts to waiver of the

right to appeal the magistrate's ruling. E.g., Ayala v. United States, 980 F.2d

1342, 1352 (10th Cir. 1992). Nevertheless, when we address defendant's

arguments on the merits, we affirm.

      We review a ruling on a motion to dismiss an indictment for abuse of

discretion. United States v. Lacey, 86 F.3d 956, 971 (10th Cir.), cert. denied 117

S. Ct. 331 (1996). Outside the context of entrapment, dismissal of charges on due

process grounds generally requires "outrageous governmental conduct," which is

typically found, if at all, only when the government creates the crime or exercises

substantial coercion. See, e.g., United States v. Sneed, 34 F.3d 1570, 1577 (10th

Cir. 1994). Defendant does not allege the government either created the crime or

exercised substantial coercion. Instead, his argument concerns only INS's failure

to give him an I-294 form in connection with his most recent deportation.

      Defendant concedes the government is not required to inform a deportee of

possible penalties upon reentry. See United States v. Meraz-Valeta, 26 F.3d 992

(10th Cir. 1994). He also concedes that even when the government provides false


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information in an I-294 form, it does not violate due process. His sole argument

is that "once the INS undertook to impart actual knowledge of the terms of

incarceration and the time limits for re-entry prescribed by section 1326, it had

the obligation to do so . . . with reasonable care and to inform all deportees."

Appellant's rely br. at 4. Defendant argues INS's failure to give him the form,

which INS serves on all deportees by policy, violates a due process requirement

of equal treatment.

      Due process "expresses the requirement of 'fundamental fairness,'" Lassiter

v. Department of Social Services of Durham County, 452 U.S. 18, 24 (1981), and

is violated only by conduct which "violates those 'fundamental conceptions of

justice which lie at the base of our civil and political institutions,' and which

define 'the community's sense of fair play and decency,'" United States v.

Lovasco, 431 U.S. 783, 790 (1977) (internal citations omitted). It requires no

extended argument to establish that INS does not deviate from fundamental

conceptions of justice when it neglects to provide a form to a deportee which he

or she has no right to receive and which would advise the deportee (incorrectly as

the form stated the penalty could be imprisonment up to fifteen years when the

maximum penalty at the time of defendant's deportation was twenty years) what

he or she is deemed to already know from the criminal statute itself. See, e.g.,

United States v. Denis-Lamarchez, 64 F.3d 597 (11th Cir. 1995), cert. denied 116


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S.Ct. 799 (1996). Even if we were to accept defendant's argument that INS's

failure to deliver a form that it chose to deliver to all deportees was

fundamentally unfair, "the fact remains that '[t]he limitations of the Due Process

Clause . . . come into play only when the Government activity in question violates

some protected right of the defendant.'" United States v. Payner, 447 U.S. 727,

737 n.9 (1980) (internal citation omitted). "No one has the right to commit a

crime, even if misled by the government as to its enforcement methods." United

States v. Leahey, 434 F.2d 7, 11 (1st Cir. 1970).

      Moreover, defendant argues the motion to dismiss should have been granted

because INS "acted negligently in not informing the defendant and the result

violated the defendant's due process rights and fundamental principles of

fairness." Appellant's reply br. at 4-5 (emphasis added). "[T]he Due Process

Clause is simply not implicated" by negligent acts. Daniels v. Williams, 474 U.S.

327, 328 (1986); see also Davidson v. Cannon, 474 U.S. 344, 347 (1986);

Seamons v. Snow, 84 F.3d 1226, 1234 (10th Cir. 1996) (more than negligence

required to trigger due process protections); Archie v. City of Racine, 847 F.2d

1211, 1219-20 (7th Cir. 1988) (same), cert. denied 489 U.S. 1065 (1989); Tallman

v. Reagan, 846 F.2d 494, 495 (8th Cir. 1988) (same).

      Defendant argues this case should be controlled by decisions which

suppressed evidence obtained by Internal Revenue Service agents who did not


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follow a publicized IRS policy to give taxpayers a Miranda-like warning after

preliminary inquiries. See Leahey, 434 F.2d 7; United Stated v. Heffner, 420

F.2d 809 (4th Cir. 1969). These cases are distinguishable because, inter alia, the

evidence does not show the INS policy of distributing the I-294 form was

designed for protection of deportees (rather than deterrence of reentry) nor

deliberately publicized to induce reasonable reliance. Cf. Leahey, 434 F.2d at 11

(agencies do not automatically violate due process when they fail to adhere to

their procedures); United States v. Lockyer, 448 F.2d 417, 421 (10th Cir. 1971)

(Leahey does not apply to rule not published as definition of taxpayers' rights).

Indeed, defendant acknowledges "one of the purposes of the I-294 form is

deterrence." Appellant's br. at 12. In addition, these cases do not apply to

negligent agency oversights. See Clemente v. United States, 567 F.2d 1140, 1146

n. 9 (1st Cir. 1977), cert. denied 435 U.S. 1006 (1978).

                                         III.

      AFFIRMED. The mandate shall issue forthwith.

                                                Entered for the Court

                                                Mary Beck Briscoe
                                                Circuit Judge




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