United States v. Dellosantos ( 2003 )

Not for Publication in West’s Federal Reporter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
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
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 non-
frivolous defense to a deportation charge, such departures are
foreclosed under United States v. Clase-Espinal, 115 F.3d 1054,
-2-
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).
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-