United States v. Naveo-Morcello ( 1997 )

[NOT FOR PUBLICATION]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]
Before
Boudin, Circuit Judge,
Hill,* Senior Circuit Judge,
and Pollak,** Senior District Judge.
Merle Ruth Hass, by appointment of the Court, with whom
Applegate, Valauskas & Rosen was on brief for appellant.
Kevin O'Regan, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for
appellee.
November 26, 1997
* 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(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.
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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