Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 01-2240

UNITED STATES OF AMERICA,

Appellee,

v.

RAMÓN PINEDA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Torruella, Circuit Judge,

Cyr and Stahl, Senior Circuit Judges.

Mark L. Stevens, on brief, for appellant.

Theodore D. Chuang, Assistant United States Attorney, with

whom Michael J. Sullivan, United States Attorney, were on brief,

for appellee.

January 17, 2003
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Per Curiam. Defendant-appellant Ramón Pineda appeals the

district court's acceptance of his guilty plea at his Rule 11

hearing, and the denial of his motion to suppress evidence of his

prior deportation. After careful review of the briefs and record

in this case, we affirm.

I. The Facts

The district court found the pertinent facts to be as

follows. Pineda, a citizen of El Salvador, immigrated to the

United States in 1980. In 1989, he married an American citizen and

took steps to regularize his immigration status. His residency

status was revoked in 1992 because his then-estranged wife failed

to attend an Immigration and Naturalization Service ("INS") marital

interview. On November 5, 1993, the INS served Pineda with an

Order to Show Cause. The ensuing deportation proceedings

culminated on July 22, 1994, when an Immigration Judge ("IJ") found

Pineda deportable and ineligible for discretionary relief under

§ 212(c). The IJ granted Pineda a forty-five day stay of

deportation to permit him to file an asylum claim. This stay was

extended twice, but Pineda never filed an asylum claim.

In September 1994, after the expiration of the initial

forty-five day stay, Pineda was incarcerated on a state rape

charge. On March 2, 1995, the IJ ruled that Pineda's failure to

file the asylum claim constituted a waiver and abandonment.
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Consequently, he ordered Pineda deported and, on June 17, 1996,

Pineda was deported to El Salvador.

Pineda re-entered the United States illegally in

September of 1996 and was arrested on another state charge in 1997.

While in state custody, Pineda was indicted for one count of

unlawful reentry to the United States in violation of 8 U.S.C.

§ 1326. On August 2, 2000, Pineda filed a motion to suppress

evidence of his prior deportation on due process grounds. While

the suppression motion was pending, the indictment was superseded

by one charging illegal entry by an aggravated felon after

deportation in violation of 8 U.S.C. § 1326.

On January 9, 2001, the district court denied Pineda's

motion to suppress evidence of his prior deportation. First, the

district court held that although Pineda was not orally advised of

his right to appeal the deportation order at the March 2, 1995

hearing, the fact that he received written notice of that right

satisfied the requirements of both INS regulations and due process

in this case. The district court rejected the claim that oral

colloquy regarding appeal rights is mandatory, holding that such

inquiry is only required when "the IJ is seeking to extract a

waiver of an alien's right of appeal," which did not occur in the

present case.

Second, the district court held that although Pineda was

never advised -- pursuant to Article 36 of the Vienna Convention on
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Consular Relations, April 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261,

1967 WL 18349 (ratified November 24, 1969) ("Vienna Convention") --

of the right of an arrested alien to contact consular officials

from his native country, such a failure does not constitute grounds

for suppression because "there is no general exclusionary rule for

international law violations," and because the Vienna Convention

provides no specific judicial remedy for a violation and confers no

private right of action for redress of a violation. Cf. United

States v. Li, 206 F.3d 56 (2000) (en banc).

Third, the district court found that, contrary to

Pineda's claim, Pineda was not deported in absentia. Pineda

received a deportation hearing on July 22, 1994, at which he was

warned that unless he filed an asylum application within an

allotted period of time, the IJ would issue a deportation order

without further hearing. Thus, the district court concluded that

when the IJ issued the deportation order on March 2, 1995, the IJ

simply "did what he told Pineda that he would do" and lawfully

issued the final order in accordance with INS regulations. Having

found no fundamental flaw in the deportation proceedings, the

district court denied the motion to suppress.

On April 17, 2001, Pineda, pursuant to a plea agreement,

entered a conditional plea of guilty to the charge of illegal

reentry by an aggravated felon after deportation. Pursuant to Rule

11(a)(2) of the Federal Rules of Criminal Procedure, Pineda
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reserved his right to appeal the district court's denial of the

motion to suppress. Following the plea colloquy, the district

court found that the defendant understood the nature of the charge

and that his plea was voluntary, intelligent, and knowing. On

August 21, 2001, Pineda was sentenced to seventy months of

imprisonment, two years of supervised relief, and a $100.00 special

assessment, but he was not fined.

II. The Guilty Plea

We review the acceptance of the guilty plea for plain

error because Pineda did not seek to withdraw his plea in the

district court. See United States v. Vonn, 535 U.S. 55, 122 S. Ct.

1043, 1046 (2002); United States v. Gandía-Maysonet, 227 F.3d 1, 5

(1st Cir. 2000). We consider the totality of the circumstances to

determine whether such plain error exists and to determine whether

the guilty plea is voluntary, intelligent, and knowing within the

framework of Rule 11. United States v. Hernández-Wilson, 186 F.3d

1, 12 (1st Cir. 1999); United States v. Cotal-Crespo, 47 F.3d 1, 3

(1st Cir. 1995).

In order to be acceptable, a guilty plea must be found to

comport with the three core concerns of Rule 11: (1) the absence of

coercion; (2) the defendant's understanding of the nature of the

charges against him; and (3) the defendant's understanding of the

consequences of his guilty plea. United States v. Isom, 85 F.3d

831, 835 (1st Cir. 1996); Cotal-Crespo, 47 F.3d at 4.
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The thrust of Pineda's argument is that the Rule 11

colloquy was inadequate as evidenced by Pineda's ambivalent answers

and questions to the judge. After careful consideration of the

arguments presented by the parties in their briefs and at oral

argument and review of the record, we find that each of the three

core Rule 11 concerns have been met and affirm the district court's

acceptance of the guilty plea as voluntary, intelligent, and

knowing. We briefly address each of the Rule 11 concerns.

First, the district court properly found an absence of

coercion because Pineda ultimately responded unequivocally that he

had not been coerced, and further because Pineda's responses

provided no grounds for believing his guilty plea was indeed

coerced.

Second, the district court correctly found that Pineda

understood the charges against him. We agree with the government

that the source of any seeming confusion on Pineda's part arose

from the fact that Pineda wanted to properly preserve his right to

appeal the ruling on the motion to suppress because he believed his

deportation proceeding violated due process. Pineda nonetheless

understood the charges against him and ultimately admitted that he

had committed the offense conduct described by the government. See

Cotal-Crespo, 47 F.3d at 6 (holding that when the government sets

forth the elements of the offense and the defendant's conduct, a
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defendant's admission that the allegations are true suffices to

show he understands the charges).

Finally, the district court correctly found that Pineda

understood the consequences of his guilty plea. In response to

Pineda's questions, the court thoroughly explained the consequences

of pleading guilty. Once again, Pineda's main concern was his

ability to appeal the deportation issue, which the court explained

to him would be possible.

III. The Motion to Suppress

The motion to suppress evidence of Pineda's prior

deportation presents a mixed question of law and fact, and the

ultimate determination of constitutionality is subject to de novo

review. Ornelas v. United States, 517 U.S. 690, 699 (1996); United

States v. Goldman, 41 F.3d 785, 787 (1st Cir. 1994). Any related

findings of fact, however, are subject to clear error review.

United States v. Martínez-Molina, 64 F.3d 719, 726 (1st Cir. 1995).

Pineda argues that his prior deportation is fundamentally

flawed because he was: (1) not properly notified of his right to

appeal; (2) improperly deported in absentia; and (3) not notified

of his right to contact the consulate of his home country of El

Salvador. After careful consideration of the arguments presented

and review of the record, we agree with the reasoning presented in
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the district court's memorandum and affirm the denial of the motion

to suppress.

Affirmed.