United States v. Molinuevo-Polanco

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 98-2163
UNITED STATES,
Appellee,
v.
JUAN MOLINUEVO-POLANCO, a/k/a Francisco A. Caban,
a/k/a Juan Caba,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Boudin, Stahl and Lynch,
Circuit Judges.
Ramon Garcia on brief for appellant.
Guillermo Gil, United States Attorney, Jorge E. Vega-
Pacheco, Assistant United States Attorney, and Camille Velez-
Rive, Assistant United States Attorney, on brief for appellee.
March 8, 2000
Per Curiam. Appellant Juan Molinuevo-Polanco pled
guilty to one count of illegally reentering this country
after a prior conviction for an aggravated felony and
deportation in violation of 8 U.S.C. § 1326(b). Prior to
sentencing, he never sought to withdraw his guilty plea, but
this is the relief he seeks on appeal. He contends that his
Fifth Amendment due process rights were violated when
certain government agents failed to advise him of his rights
under Miranda v. Arizona, 384 U.S. 436 (1966), and failed to
advise him of his rights under the Vienna Convention on
Consular Relations or to notify his consulate of his arrest.
The thrust of his argument appears to be that he would not
have made certain incriminating statements to government
agents, or would not have pled guilty, if he had received
the requisite Miranda warnings and if his Vienna Convention
rights had been observed. We affirm for the following
reasons.1
1. We think that the government has adequately
explained in its brief why the Fifth Amendment due process
1We also grant Molinuevo's motion to submit his appeal to
the court on the basis of the parties' briefs and without oral
argument.
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claim fails, at least insofar as it is based on the alleged
violation of the Vienna Convention. We agree that claimant
has not made the requisite showing of prejudice. See United
States v. Ademaj, 170 F.3d 58, 67 (1st Cir.), cert. denied,
120 S. Ct. 206 (1999) (rejecting Fifth Amendment due process
claim, based on violation of Vienna Convention, on plain
error review because appellant had not shown prejudice due
to the violation). Accordingly, the extent to which
appellant may or may not have enforceable rights under the
Vienna Convention is irrelevant here. See generally United
States v. Li, Nos. 97-2034 et al. (1st Cir. Feb. 29, 2000)
(en banc).
2. There is no need to consider the Miranda claim,
although the government submits proof that it advised
Molinuevo of his Miranda rights before he admitted his guilt
to government agents. By pleading guilty, Molinuevo waived
any Miranda violation. See United States v. Cordero, 42
F.3d 697, 699 (1st Cir. 1994) (noting that an unconditional
guilty plea waives prior non-jurisdictional constitutional
errors and rejecting contention that a claim for suppression
of evidence is a non-waived jurisdictional issue); Acevedo-
Ramos v. United States, 961 F.2d 305, 307-09 (1st Cir. 1992)
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(concluding that guilty plea waivers of affirmative defenses
to prosecution need not be explicit).
In any event, even if we were to consider his claim
on this undeveloped record (the appellant never filed a
motion to suppress below and no suppression hearing based on
any Miranda violation was ever held), we could not find that
the alleged Miranda violation was plain error. For all we
know, Molinuevo may have impliedly or even explicitly waived
his Miranda rights before admitting his guilt. See United
States v. Nunez, 19 F.3d 719, 723 (1st Cir. 1994)
(concluding, after assuming that plain error review of a
waived suppression claim was appropriate, that plain error
could not be shown given the lack of adequate factual
development in the district court); accord United States v.
Davenport, 986 F.2d 1047, 1048-49 (7th Cir. 1993).
3. Molinuevo has not explicitly contended that he
did not enter his guilty plea voluntarily, knowingly and
intelligently, and he has not challenged the validity of his
plea hearing under Fed. R. Crim. P. 11. Accordingly, he has
not shown that vacating his guilty plea on direct appeal
would be appropriate. See United States v. Noriega-Millan,
110 F.3d 162, 166 (1st Cir. 1997) (indicating that a
criminal defendant seeking to withdraw his guilty plea for
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the first time on direct appeal would have to show a
"substantial defect in the Rule 11 proceeding") (citation
omitted); United States v. McKelvey, No. 99-1264, slip op.
at 6 (1st Cir. Feb. 11, 2000) (indicating that a criminal
defendant seeking to withdraw his guilty plea on direct
appeal would have to show "a fundamental defect [in his plea
proceeding] which inherently results in a complete
miscarriage of justice or an omission inconsistent with the
rudimentary demands of fair procedure") (citation and
internal quotation marks omitted).
4. We note our doubt that Molinuevo's allegedly
unconstitutional confession factored into his decision to
plead guilty. As an undisputed investigative report
appended to the government's brief shows, the government had
ample evidence of his guilt apart from the confession.
Moreover, by the time he pled guilty he was represented by
an attorney who would seem better able to advise him in
connection with his plea than consular authorities.
The conviction and sentence are affirmed. See Loc.
R. 27(c).
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