Not for Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.3 

# Un ited Sta tes C our t of A pp eals

For the First C ircuit

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 Atto r ney, with whom Michael J. Sulli van , U nited States Attorney, were on brief, for appellee.

January 17, 2003-2- 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 UnitedStates in 1980. In 1989, he married an American citizen and took steps to regular ize 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 His residency status was revoked in 1992 because his then-estranged wife failed to attend an Immigration and Naturalization Service ("INS") marital interview.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 culminatedon July 22, 1994, when an Immigration Judge ("IJ") found Pineda deportable and ineligible for discreti o nary 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 exp iration of the initial forty-fi ve 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.-3-

Consequently, he ord ere d 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 illega l entry by an aggravated felon after deportation in violation of 8 U.S.C. § 1326.

On January 9, 20 01, 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, 19 9 5 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 d istr ict court rejected the claim that oral colloquy reg ardi ng appeal rights is mandatory, holding that such inquiry is only required when "the IJ i s 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-4-

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 fromhis 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 Vie nna Convention provides no specific judicial remedy for a violation and confers no privat e right of action for redress of a violation. Cf. United States v. Li , 206 F.3d 56 (2000) (en banc).

Third, the district c our t found that, contrary to Pin eda's claim, Pineda was not deported in absentia. Pineda receiveda deportation hearing on July 22, 1994, a t whi ch he was warnedthat unless he filed an asylum application within an allottedperiod 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 lawf ully issuedthe final order in accordance with INS regulations. Having foundno fundamental flaw in the deportation proceedings, the district court denied the motion to suppress.

On April 17, 2001, Pineda, pursuant to a plea agreement, entereda 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-5-

reservedhis 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 andthat his plea was voluntary, intelligent, and knowing. On August 21, 2001, Pineda was sentenced to seventy month s 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 pl ea for plain

error because Pineda did not seek to withdraw hi s 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 coerci on; (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.-6- The t hrust of Pineda's argument is that the Rule 11 colloquy was inadequate as evidenced by Pineda's ambivalent answers andquestions 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, inte lligent, and knowing. We briefly address each of the Rule 11 concerns.

First, the district co urt properly found an absence of coercion because Pineda ultimately responded unequivocally that he had not been coerced, and further because Pineda's responses providedno grounds for believing his guilty plea was indeed coerced. Second, the dist rict 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 fromthe fact that Pineda wanted to properly preserve his right to appeal the ruling on the motion to suppress because he believed his deportation proc eeding violated due process. Pineda nonetheless understoodthe charges against him and ultimately admitted that he hadcommitted 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-7-

defendant's admission that the allegations are true suffices to show he understands the charges).

Finally, the district court correctly found that Pineda understoodthe 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 mot ion 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 err or rev iew. UnitedStates v. Martínez-Molina , 64 F.3d 719, 726 (1st Cir. 1995).

Pineda argues that his prior deportation is fundamentally flawedbecause 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 andreview of the record, we agree with the reasoning presented in-8-

the district court's memorandum and affirm the denial of the motion to suppress.

Affirmed .