USCA1 Opinion

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

following

in

felony,

On appeal,

denying

because

illegally

reentering

a deportation order subsequent

aggravated
(b)(2).

with

his

in

violation

of 8

the

United

to a conviction for an
U.S.C.

1326(a) and

Smith asserts that the district

motion to

dismiss

(1)

States

the entire

court erred

indictment

the government unduly burdened his ability to appeal the

deportation order
the indictment

underlying the offense,

based on

and (2) that

his prior aggravated

part of

felony conviction

because that conviction was vacated after the government indicted

Smith in this case.

We affirm.
I.
I.

On

January

entered the United

5,

BACKGROUND
BACKGROUND

1983,

States at

October

1,

1984,

Smith

citizen

Miami, Florida, as

pleasure with authorization to

On

Smith, a

of

a visitor

stay until the end of

was

charged

Jamaica,

with

for

the month.

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

on

the

grounds

deportation

under

Nationality

Act

hearings were

that

deportation proceedings against

Smith's

Section
("INA"),

conviction

241(a)(11)
8

subjected

of the

U.S.C.

Smith
him

Immigration

1251(a)(11).

to

and

Several

held on this matter beginning in July of 1987.

At

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one

of

these hearings,

against Smith:

the

remaining in

INS brought
the United

an

additional charge

States longer

one-month period of time granted upon his original

than the

admission, an

offense

subjecting Smith to

of

INA,

the

deportable

8 U.S.C.

on

this

deportation under Section 241(a)(2)

1251(a)(2).

additional

ground, but

deportability on the original

attempting

to have the BMC

challenge

the

admitted to
forms

once

was

contested

his

he

conviction vacated.
charge, despite

his deportability on other

that are

admitted he

241(a)(11) charge because he was

241(a)(11)

of relief

available

Smith

the

is

fact that

he

grounds, because certain

available under

defendant

Smith chose to

found

241(a)(2)
deportable

are not
under

241(a)(11).
Smith's initial
were
found

unsuccessful, and
Smith

was

efforts to
on June

deportable

241(a)(11) and ordered Smith's

ruling on the

ground that

vacate the BMC

30, 1988, an

under

conviction

immigration judge

both

241(a)(2)

deportation.

and

Smith appealed this

the judge improperly

relied upon

an

uncertified copy of the BMC conviction.

On September
INS agents arrested

25, 1989,

Smith for

while the appeal

an alleged gun

was pending,

offense.

Agents

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

information provided
that
The

Smith had
INS knew

concealed

by the Mirimar, Florida,

been interviewed
that

firearm

Smith
in

had

and found to
been

October

of

-3-

Police Department

possess weapons.

convicted
1988

(Smith

of

carrying
pleaded

nolo
____

contendere
__________

to that

charge

"stayed and withheld")

by the

and

an

adjudication of

and that Smith had

INS in May of 1989

guilt

was

been briefly detained

after being found in

possession of a

knife during an INS sweep.

After
into custody

the September

and held him

1989 arrest,

in lieu

the INS

of posting

took Smith

a $25,000

bond.

Smith was never officially charged for the gun offense underlying
the arrest.

Smith then

hearing officer ruled

on the

detained without bond.

the ruling before

moved for a bond determination.

motion and ordered

An INS

that Smith

be

Smith then requested a redetermination of

an immigration

following a hearing, an

judge.

On

October 18,

1989,

immigration judge denied Smith's request

for a change in his custody status.

Central to
INS

detained

him without

ability to pursue his

Smith

this appeal is Smith's

bail in

to unduly

pending immigration appeal, and

into waving that appeal.

to support this allegation.

burden his

to coerce

Smith offered no direct evidence

He does point out, however, that the

record does not indicate that Smith

charges

order

allegation that the

was ever notified of the gun

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

Smith was

that, at some

transferred from an

point in November of

INS detention center

1989,

in Florida,

where

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

Texas.

Smith's counsel affirmatively asserts in the brief and in

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prior

motions

before

the

opportunity to rebut the

court

that

Smith

never

had

gun charges, but this assertion

an

is not

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

involved in the bond hearings.1
In

any

incarceration

event,

during

faced

the pendency

Smith, in consultation with

withdraw

his

appeal

withdrawing the

with

of

lengthy

period

his immigration

his attorney in El Paso,

and

submit

appeal, signed

to

and his

appeal,

decided to

deportation.

by Smith

of

motion

attorney, was

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

In March of 1992, Smith
Miami.

reentered the United States at

He was subsequently arrested by INS agents in Dorchester,

Massachusetts

on

returned

indictment

for

this

October

of

1993,

Meanwhile,

the
in

March 22,

1993.

federal grand
case

on

Smith's

May

jury then
13,

current

1993.

counsel

successfully vacated the original

1985 BMC conviction upon which

Smith's deportation was originally based.

Smith moved
case

by collaterally

to dismiss

the indictment in

attacking

the deportation

the present

order and

aggravated felony underlying the charged offenses.

the

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

Following a

December

motion.

district court
Smith's
subpoenas

subsequently
the

purpose

collateral attack issue with

at

trial.

on

denied Smith's motion to

counsel
for

hearing

Then, on

requested
of

9, 1993,

dismiss the indictment.

approval

collecting

of

evidence

the intent of litigating the

January 12,

1994,

the

the court

several
on

the

issue

granted the

government's motion to exclude

surrounding the
that

same

day,

all evidence of the circumstances

validity of the deportation

Smith

pursuant to Fed. R.

entered

proceedings.

conditional

plea

Crim. P. 11(a)(2), reserving for

Later

of guilty

appeal the

issues presented here.

II.
II.
A.
A.

ANALYSIS
ANALYSIS

Collateral Attack on Deportation: Coerced Waiver of Appeal

Collateral Attack on Deportation: Coerced Waiver of Appeal
__________________________________________________________
To establish

must

an offense

prove that the defendant

U.S.C.

1326(a)(1).

collaterally

attack

under

1326,

has been previously

the government
deported.

A defendant accused of violating

the

underlying

deportation

1326 may

order if

the

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

for meaningful judicial review of that deportation order.
__________________________
States v. Mendoza-L pez, 481 U.S. 828, 839 (1987)
______
_____________
alien

of

the right

to have

the

disposition in

United
______

("Depriving an

a deportation

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

review be
the

made available in

any subsequent proceeding

in which

result of the deportation proceeding is used to establish an

element of a criminal offense.").

-6-

Smith argues that his

underlying

deportation

right to collaterally attack the

under

Mendoza-L pez
_____________

foreclosed by the district court.

his

motion to dismiss that

meaningful judicial

Smith originally

the INS's detention

uncharged gun offense effectively

review of

the court ruled

issue

at

that Smith

trial.

We

find

improperly

contended in

of Smith for an

denied him the opportunity for

the

deportation proceeding,

therefore, the proceeding cannot properly serve

his indictment under 8 U.S.C.

was

1326.

and

as the basis for

After denying this motion,

could not present

no error

in

evidence on

the district

this

court's

actions.

We have recently held that a defendant who deliberately

and voluntarily waived
order

his right to

appeal a prior

under the advice of counsel, is not deprived of meaningful

judicial

review

and

thus

deportation order during the

may

not

collaterally

Vieira-Candelario, 6
_________________

case, Smith withdrew

the advice of counsel.
his

appeal was

coerced, and thus

not

attack

1326 criminal proceedings.

States v. Smith, 14 F.3d 662, 665 (1st Cir.

______
_____
v.

deportation

F.3d 12, 15

his appeal of

the

United
______

1994); United States

_____________

(1st Cir. 1993).

In this

the deportation order

under

Smith argues, however, that the waiver of

deliberate and

voluntary,

but rather

was

his case is distinguishable from the situation

in

Smith and Vieira-Candelario.

_____
_________________

action of imprisoning him

reason

for

Smith, the INS's

without allowing him to challenge

his incarceration,

ability to appeal because

According to

unconstitutionally

the

burdened his

it required him to suffer

an unlawful

-7-

imprisonment
The

in order

to pursue his

only way to gain his rightful

right to

judicial review.

freedom, Smith argues, was by

waiving his appeal and accepting deportation.

There are
Smith's appeal.
coerced

couple of

The first

under the

subsidiary issues

one is

surrounding

whether any waiver,

most horrendous

and fundamentally

even if

unfair of

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

_____________
subsequent criminal indictment under
there are some

1326.

circumstances in which a

waiver of an appeal

We must assume that

coerced and involuntary

constitutes a denial of the

opportunity for

meaningful

judicial review and thus cannot serve as a bar, under

Smith
_____

Vieira-Candelario, to
_________________

and

deportation

order.

See
___

collateral

Mendoza-L pez,
_____________

challenge of

481 U.S.

at

839 n.17

(noting that abuses such

and knowing

as coerced confessions, biased judging,

use of perjured testimony "could operate, under some

circumstances,

to

deny

effective

judicial

review

of

administrative determinations").
The
allegations,

next

question

if true,

could

circumstances

so

as to

is

whether

constitute

effectively

Smith's

specific

sufficiently

deny

Smith of

coercive

meaningful

judicial review of his deportation order despite his waiver of an

appeal.

To the

as opposed

extent Smith alleges that the

to mistakenly or inadvertently,

INS purposefully,

detained him without

probable cause, and without formally charging him or allowing him

to subsequently challenge the charges for
detained,

for

the deliberate

purpose

which he was allegedly

of

pressuring him

into

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withdrawing

his

appeal

and

presents

allegations that

raise

Mendoza-L pez
_____________

Although Smith

expediting

issue

could still

deportation,

he

might

be sufficient

to

subsequent

criminal

conceivably
in a

pursue his

his

appeal while in

case.

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

presented the matter

the

the court to make

true.

There

Smith's

appeal

whether

to the district court

allow

of

issue of

a finding that

he

of the deportation order.

adequately

in a way

that would

Smith's allegations are

is no evidence in the record

allegations that

Smith

to support any aspect

was coerced

into

waiving his

On the contrary, what evidence

does exist indicates that Smith was lawfully detained for weapons
violations, that he was given two
detention, including
that the INS

opportunities to challenge his

a hearing before an

reasonably believed

immigration judge, and

it had cause

to detain

because Smith had been picked up for previous weapons

and because
no formal gun
that

he was found with two 9 mm

charges were

handguns.

brought against Smith

Smith was transferred from Miami to

violations

The fact that

and the

is no evidence to support a

fact

El Paso do not rise to

the level of evidence of deliberate coercion by the INS.

there

Smith

In sum,

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

he

tried to present evidence

the

district court prevented

matter,

the court

findings
point,

when

made no

it denied

in support of

his allegations but

him from doing so.

factual findings

Smith's motion

however, Smith had presented

affidavit

coercion claim, and (2)

or

to

As an initial

explicit legal

dismiss.

no evidence --

At that

not even an

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
See D. Mass. Loc.
___

for dismissal out of hand.

R. 7.1(A)(2); United States v.

_____________

Levasseur, 704
_________

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

Smith
dismissed,
coercion

that even

if

his

motion was

properly

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

of Smith at trial

Mendoza-L pez
_____________
As with

argues

doctrine.

motions

as an affirmative

defense under the

We find no support for this contention.

to suppress

evidence,

alleged

constitutional

infirmities in matters collateral to the elements of the

offense involve complex questions
appropriately determined
Cf.
__

Mendoza-L pez,
_____________

opinion

by the court in

481 U.S.

that found due

of both law and fact

at

832

that are

a preliminary hearing.

(affirming circuit

process required a

the underlying deportation).

charged

court

"pretrial review" of

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

foreclosed
court

opinion

at

this

point

--

even

that

opinion

a relitigation of the issue if already decided by the

__

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

failure

to

him by

was of his own doing and

second bite at the apple.

assert a
Therefore,
subsequent

such

does not, by itself, warrant a

the Mendoza-L pez issue

_____________

court's dismissal

exclusion

district court,

Under such circumstances, Smith cannot

right to relitigate
the

the

of

of

evidence

Smith's

at trial.

motion, and

pertaining

to

its

Smith's

deportation proceedings are affirmed.

B.
B.

Attack on Aggravated Felony Portion of the Indictment

Attack on Aggravated Felony Portion of the Indictment
_____________________________________________________
In

of

his motion to dismiss, Smith also argued that proof

prior aggravated

offense

under

8 U.S.C.

felony conviction
1326(b)(2).2

is

an element

Because

of an

Smith's only

____________________
2

8 U.S.C.

1326 provides in relevant part:

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

of

this

(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
imprisoned

fined under
Title 18,
not more than 2 years,

or
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

felony provision,

indictment
1326(b)(2).

which

referenced the

aggravated

The district court rejected this

argument when it denied the motion.

Subsequent to the proceedings in the district court, we

decided United States
_____________
Cir. 1994),
separate

v. Forbes,
______

16 F.3d

in which we held that

offense,

but

rather

1294, 1297-1300

1326(b) does not establish a

simply

provides

sentence

enhancement for those convicted under

1326(a) (the offense

reentry into

being deported),

the United

been convicted of an
That

States after

a separate element of

dismissal of the

for

who had

aggravated felony before their deportation.

case controls the present issue.

Smith's underlying

(1st

Section 1326(b)(2) is not

an offense and therefore, the

vacation of

felony conviction cannot provide

grounds for

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,
______

____________________
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-

996

F.2d 1294, 1298

district

(1st Cir. 1993).

court prudently

Furthermore,

sentenced Smith

as if

felony did not exist, by implementing a downward

we note that the

his aggravated

departure that,

according to the court, "in effect strips out the conviction that
has been vacated."
refusing

to

Thus, even if the district court had erred in

dismiss

the

aggravated

felony

portion

of

the

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

Smith was

never

sentenced on

the allegedly

erroneous

United States v. Long, 894 F.2d 101, 108 (5th Cir. 1990).
_____________
____
Affirmed.
________

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