United States v. Naveo-Morcello ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            United States Court of Appeals

                                For the First Circuit



                                 ____________________



          No. 97-1062



                                    UNITED STATES,

                                      Appellee,



                                          v.



                    HIPOCRATE NAVEO-MORCELLO, A/K/A LUIS SANCHEZ,

                                Defendant - Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                    [Hon. Michael A. Ponsor, U.S. District Judge]
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                                 ____________________



                                        Before



                                Boudin, Circuit Judge,
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                             Hill,* Senior Circuit Judge,
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                         and Pollak,** Senior District Judge.
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                                _____________________



               Merle Ruth  Hass, by  appointment  of the  Court, with  whom
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          Applegate, Valauskas & Rosen was on brief for appellant.
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               Kevin  O'Regan, Assistant United  States Attorney, with whom
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          Donald  K.  Stern,  United  States  Attorney, was  on  brief  for
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          appellee.







                                 ____________________



                                  November 26, 1997



                                 ____________________




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          *  Of the Eleventh Circuit, sitting by designation.



          **    Of  the  Eastern  District  of  Pennsylvania,  sitting   by

          designation.

























                    HILL,  Senior   Circuit  Judge.     Defendant-Appellant
HILL,  Senior   Circuit  Judge.
_______________________



          Hip crate Naveo-Morcello  appeals the district court s  denial of



          his  motion to dismiss the  indictment, charging him with illegal



          reentry after deportation,  in violation of 8 U.S.C.   1326.  The



          district  court sentenced Naveo-Morcello  to fifty-one  months in



          prison and three years  supervised  release.  His appeal is based



          on the ground  that his prior deportation from  the United States



          was unlawful.



                    Under United States v. Mendoza-L pez,  107 S. Ct.  2148
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          (1987), the  Supreme Court  held that  where a  defendant s prior



          deportation  constitutes a critical element of his alleged crime,



          and where  meaningful judicial  review of  that order is  denied,



          then a  court must review  the prior  deportation order.   Id. at
__



          2154-55.



                    Here, in  a well-considered opinion, the district court



          found that  Naveo-Morcello had  voluntarily and  knowingly waived



          his right to judicial review.  It also found that his decision to



          leave  the country  was  not  due  to  unconscionable  Government



          conduct.  See,  e.g., United States v.  Vieira-Candelario, 6 F.3d
___   ____  _____________     _________________



          12,  15 (1st  Cir.  1993).   It  concluded that  Naveo-Morcello s



          collateral   attack  of  his  deportation  was  foreclosed  under



          Mendoza-L pez.  We agree.
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                    We recognize  that court-appointed  counsel for  Naveo-



          Morcello in this appeal  was presented with the  proverbial sow s



          ear, from which, in brief and oral argument, she sought to make a









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          silk purse.  In spite of her commendable effort, that end was not



          achieved.



                    There  being no error,  the district court s  denial of



          Naveo-Morcello s motion to dismiss the indictment is affirmed.



                    AFFIRMED.
AFFIRMED.

























































































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