Not for Publication in West’s Federal Reporter 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. 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, 2003
1 The amended sentencing memorandum that Antonio submitted

below sought a downward departure only on the ground that Antonio

was willing to stipulate to his deportability. Absent a nonfrivolous defense to a deportation charge, such departures are

foreclosed under United States v. Clase-Espinal, 115 F.3d 1054,

-2-

Per Curiam. Appellants Juan and Antonio 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

erred by denying his request for a downward departure based on his

deportable alien status. Juan contends that the attorney who

represented him 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

contained in 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 should apply. See United

States v. De-La-Cruz Castro, 299 F.3d 5, 15 (1st Cir. 2002), United

States v. Teeter, 237 F.3d 14, 21-27 (1st 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 the terms of his plea

agreement, and he forfeited that right by his presentation at the

sentencing hearing.1
1056-60 (1st Cir. 1997). While Antonio now contends that adverse

penal consequences associated with his deportable alien status

should entitle him to a downward departure, he did not make this

argument below. 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 (1st

Cir. 2001). 

2 As with Antonio, no extraordinary circumstances have been

identified in support of a deportability departure for Juan.

-3-

On appeal Juan argues that the attorney who represented

him below 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 considered the arguments raised in the

appellants' joint pro se supplemental brief and concludes that they

are meritless. In view of the foregoing, the government's motion

for summary 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).