Not for Publication in West’s Federal Reporter Citation Limited Pursuant to 1st Cir. Loc.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

# United Stat es Court of Appeals

For the First C ircuit

No. 02-1177 UNITED STATES, Appellee,

v. ANTONIO DELLOSANTOS, Defendant, Appellant.

_____________________ No. 02-1178 UNITED STATES, Appellee,

v. JUAN DELLOSANTOS, Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Nathaniel M. Gorton, U.S. District Judge ]

Before Selya, Lipez and Howard, Circuit Judges . Patrick Shanley on brief for appellants. Michael J. Sullivan , United States Attorney, and Paul G. Casey , Assistant U.S. Attorney, on Motions for Summary Disposition for appellee.

June 10, 20031 The amended sentencing memorandum t hat Antonio submitted

below sought a downward departure only on the ground that Antonio was willing to stipulate to his deportability. Absent a nonfr ivolous defense to a deportation charge, such departures ar e foreclosedunder United States v. Clase-Espinal , 115 F.3d 1054, -2- Per Curiam . Appellants Juan and Ant onio Dellosantos appeal their sentences following their convictions for possessing with the intent to distribute and distributing heroin in violation of 21 U.S.C. § 841(a)(1). Antonio contends that the district court erredby denying his request for a downward departure based on his deportable alien status. Juan contends that t he att orney who representedhim below provided constitutionally ineffective assistance by failing to seek such a downward departure. The government seeks summary disposition in both appeals.

Having thoroughly reviewed the briefs and the record, we

see no reason not to enforce the waiver of appellate rights that is containedin Antonio's plea agreement. After all, the record shows it to be knowing and voluntary, and Antonio does not contend that the "miscarriage of justice" exception shoul d appl y. See United States v. De-La-Cruz Castro , 299 F.3d 5, 15 (1 st Cir. 2002), United States v. Teeter , 237 F.3d 14, 21-27 (1 st Cir. 2001). We note, moreover, that even if we were to overlook Antonio's waiver of appellate rights, he abandoned the right to seek a downward departure on the ground presented here by t he terms o f his plea agreement, and he forfeited that right by his presentation at the sentencing hearing. 11056-60 (1 st Cir. 1997). While Antoni o now co ntends that adverse

penal consequenc es as sociated with his deportable alien status shouldentitl e him to a downward departure, he did not make this argument bel ow. Thus , it has been forfeited. In all events, Antonio has not suggested that his case presents any extraordinary circumstances that would support a downward departure based on his deportability. See United States v. Maldonado , 242 F.3d 1, 4 (1 st Cir. 2001).

2 As with Antonio, no ex traordinary circumstances have been identified in support of a deportability departure for Juan. -3- On appeal Juan argues that the attorney who represented himbelow rendered constitutionally ineffective assistance by failing to seek a downward departure based on Juan's deportable alien status. The argument overlooks the fact that, like Antonio, Juan waived the right to seek any departures under the terms of his plea agreement. 2

The court has co nsid ered the arguments raised in the appellants' joint pro se supplemental brief andconcludes that they are meritless. In view of the foregoing, the government's motion for su mmar y disposition in United States v. Antonio Dellosantos , No. 02-1177 is allowed . Appeal dismissed . See Loc. R. 27(c).

The government's motion for summary disposition in United States v. Juan Dellosantos , No. 02-1178, also is allowed . The judgment of conviction pertaining to Juan Dellosantos is affirmed . See Loc. R. 27(c).