*This order and judgment is not binding precedent, except under the doctrines of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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 24 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

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

ORDER AND JUDGMENT *
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges

.

After examining the briefs and appellate record, th is 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. There fore, the case is ordered submitted without oral argument.-2-

Defendant Sergio Lopez-Serrato appeals the districtcourt's denial of his motion to dismiss an indictment charging him with r eentry after deportation subsequent to conviction of an aggravated felony, c ontrary 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 mostrecently on March 22, 1995, following conviction of an aggravated felony as def ined in the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)--possessionof 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 t he requirement to obtain permission before reentry and of penalties faced up on reentry without permission. Although defendant received the form at his three p rior deportations, he did not receive the form in connection with his most recentdeportation. 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, ar guing 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 conditi onal plea of guilty, reserving-3-

the right to pursue his motion to dismiss. The mag istrate judge recommended that the motion to dismiss be denied. Defendant did notfile an objection to the magistrate's recommendation, but rather appeals fro m 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 indict ment 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 entrapme nt, dismissal of charges on due process grounds generally requires "outrageous gove rnmental conduct," which is typically found, if at all, only when the governmen t 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 governme nt either created the crime or exercised substantial coercion. Instead, his argum ent concerns only INS's failure to give him an I-294 form in connection with his mo st recent deportation. Defendant concedes the government is not required t o 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-4-

information in an I-294 form, it does not violate d ue process. His sole argument is that "once the INS undertook to impart actual kn owledge of the terms of incarceration and the time limits for re-entry pres cribed 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, violat es a due process requirement of equal treatment. Due process "expresses the requirement of 'fundamen tal 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 poli tical institutions,' and which define 'the community's sense of fair play and dece ncy,'" United States v.
Lovasco , 431 U.S. 783, 790 (1977) (internal citations omitted). It requires no extended argument to establish that INS does not de viate 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 advi se 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 deportat ion was twenty years) what he or she is deemed to already know from the crimin al statute itself. See , e.g. , United States v. Denis-Lamarchez , 64 F.3d 597 (11th Cir. 1995), cert. denied 116-5-

S.Ct. 799 (1996). Even if we were to accept defend ant'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 Governmen t activity in question violates some protected right of the defendant.'" United St ates v. Payner , 447 U.S. 727, 737 n.9 (1980) (internal citation omitted). "No on e has the right to commit a crime, even if misled by the government as to its e nforcement methods." United States v. Leahey , 434 F.2d 7, 11 (1st Cir. 1970). Moreover, defendant argues the motion to dismiss sh ould have been granted because INS " acted negligentlyin not informing the defendant and the result violated the defendant's due process rights and fun damental 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 ne gligence required to trigger due process protections); Archi e 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 Se rvice agents who did not-6-

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 distingu ishable because, inter alia , the evidence does not show the INS policy of distributi ng the I-294 form was designed for protection of deportees (rather than d eterrence of reentry) nor deliberately publicized to induce reasonable relian ce. 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) (Leaheydoes 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