V REYES PLATERO
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
JOSE ALFREDO REYES-PLATERO,
Appeal from the United States District Court
for the Southern District of California
Napoleon A. Jones, District Judge, Presiding
Argued and Submitted
May 3, 2000--Pasadena, California
Filed July 11, 2000
Before: J. Clifford Wallace, Stephen S. Trott and Ron
Opinion by Judge Wallace
Gerard J. Wasson, Grimes & Warwick, San Diego,
for the defendant-appellant.
Darrell M. Padgette, Assistant United States Attorney,
Diego, California, for the plaintiff-appellee.
WALLACE, Circuit Judge:
Reyes-Platero appeals from his conviction and sentence
a deported alien found in the United States in violation
U.S.C. S 1326. The district court had jurisdiction
18 U.S.C. S 3231. We do not have jurisdiction over
Platero's appeal from his conviction, but do have
over his timely appeal from his sentence pursuant to 18
U.S.C. S 3742. We dismiss in part and affirm in part.
Reyes-Platero, a citizen of Mexico, was deported from
United States twice, most recently on August 26, 1995.
he re-entered the United States, he was incarcerated in
fornia state prison for sexual abuse. On November 10,
while still incarcerated, he was released into
Naturalization Service (INS) custody and his Miranda
were read to him in Spanish. He was not advised,
that he could contact Mexican consular officials
Article 36 of the Vienna Convention on Consular
Apr. 24, 1963, 21 U.S.T. 77 (Convention).
Reyes-Platero waived his Miranda rights and admitted he
was a Mexican citizen and entered the United States
near San Ysidro, California, on or about December 1,
Subsequently, he unconditionally pled guilty to being a
deported alien found in the United States, a violation
U.S.C. S 1326.
A probation officer filed a presentence report (PSR)
mending a sixteen-point increase to Reyes-Platero's base
offense level because of his previous deportation for an
vated felony. Reyes-Platero successfully argued for a
point downward departure based upon the modest nature of
the previous felony. Thus, rather than a base offense
21, Reyes-Platero's base offense level was calculated at
The district court sentenced him to 46 months'
Reyes-Platero challenges both his conviction and his sen-
tence. We first address his arguments concerning his
Reyes-Platero argues that his conviction should be
because (1) the INS agent who took him into custody did
inform him that he could contact the Mexican Consulate
suant to Article 36 of the Convention and (2) his trial
rendered ineffective assistance by not attempting to
his incriminating statement in light of the alleged
violation. The government argues that Reyes-Platero
these arguments by unconditionally pleading guilty. The
implication of the government's argument is that we do
have jurisdiction to review the merits of Reyes-Platero's
viction. We have jurisdiction to determine our own
tion. Ye v. INS, 2000 WL 732911, at *2 (9th Cir. June 9,
 We recently addressed arguments based on Article 36
of the Convention in United States v. Lombera-Camorlinga,
206 F.3d 882 (9th Cir. 2000) (en banc). There, we held
even if the Convention created individually enforceable
(a point upon which we expressly reserved judgment), it
not follow that incriminating evidence obtained in
those rights must be suppressed at trial. Id. at
Lombera-Camorlinga, however, did not consider the effect
an unconditional guilty plea on one's Convention-based
ments; Lombera-Camorlinga pled guilty conditionally and
specifically preserved his Convention-based arguments
appeal. Id. at 884. Thus, the issue before us is one of
impression: may one who has unconditionally pled guilty
challenge his conviction by raising treaty-based
 In addressing this issue, we are guided by ample
law concerning the effect of a guilty plea upon earlier
tutional defects. "An unconditional guilty plea
waiver of the right to appeal all non-jurisdictional
rulings and cures all antecedent constitutional defects."
United States v. Floyd, 108 F.3d 202, 204 (9th Cir.
(emphasis added). As the Supreme Court stated,
a guilty plea represents
a break in the chain of events
which has preceded it in
the criminal process. When
a criminal defendant has
solemnly admitted in open
court that he is in fact
guilty of the offense with
which he is charged, he
may not thereafter raise
relating to the deprivation of
that occurred prior to the entry
of the guilty plea. He
may only attack the voluntary
and intelligent character
of the guilty plea by show-
ing that the advice he
received from counsel was
[inadequate] . . . .
Tollett v. Henderson, 411 U.S. 258, 267 (1973) (emphasis
added). While there is a narrow exception to the Tollett
"when the defect in question is a `jurisdictional'
States v. Johnston, 199 F.3d 1015, 1019 n.3 (9th Cir.
cert. denied, 120 S. Ct. 2206 (2000), this exception is
 The clear effect of the Tollett rule is that we do
jurisdiction over the merits of appeals based upon
constitutional defects, and we must dismiss that portion
appeal. Floyd, 108 F.3d at 203-04. However, unlike the
dant in Tollett, Reyes-Platero raises a defect under the
vention, not the Constitution. That distinction,
however, is of
no matter. Treaties, together with the Constitution,
supreme Law of the Land." U.S. Const. art. VI. If a
plea cures a constitutional defect, then it certainly
defect caused by failure to comply with a treaty. United
v. Guzman-Landeros, 207 F.3d 1034, 1035 (8th Cir. 2000)
(per curiam) ("Guzman-Landeros first argues that he
advised of his right to contact his consul. We conclude
this error, if any, does not constitute a jurisdictional
and was therefore foreclosed by Guzman-Landeros's guilty
plea." (citation omitted)). We join the Eighth
extending the Tollett rule to treaties and hold that an
tional guilty plea cures any pre-plea treaty defects
just as it
cures any pre-plea constitutional defects. Applying this
Reyes-Platero's case, and assuming without deciding, as
Lombera-Camorlinga, that the Convention creates enforce-
able individual rights, any violation of those rights
by Reyes-Platero's guilty plea.
 Notwithstanding an unconditional guilty plea,
states that a defendant may "attack the voluntary
gent character of the guilty plea by showing that the
he received from counsel was [inadequate]. "
Tollett, 411 U.S.
at 267. In Reyes-Platero's opening brief, he argued that
trial counsel was ineffective by not informing him of
Convention-based arguments. However, only in Reyes-
Platero's reply brief does he direct his ineffective
argument specifically to the voluntary or intelligent
his guilty plea. Because Reyes-Platero failed to
his guilty plea was voluntary or intelligent in his
brief, that argument is waived. United States v. Traynor,
F.2d 1153, 1159 (9th Cir. 1993).
Reyes-Platero has waived his arguments challenging his
conviction. We thus do not have jurisdiction to consider
merits of Reyes-Platero's appeal from his conviction,
miss this portion of his appeal. Floyd, 108 F.3d at
We next address Reyes-Platero's attack on his sentence.
Reyes-Platero argues that his sentence should be vacated
because his trial counsel rendered ineffective
failing to request a downward departure, pursuant to
S 5K2.0, based on cultural assimilation or voluntary
tion. This argument is not waived by Reyes-Platero's
guilty, because the alleged ineffectiveness occurred
plea was entered. See Tollett, 411 U.S. at 267 (holding
voluntary guilty plea waives prior constitutional
thereby implying that one may raise claims of
defect occurring after the entry of a guilty plea).
 Ineffective assistance of counsel arguments are
ily inappropriate for direct review and should be
habeas corpus proceedings pursuant to 28 U.S.C.S 2255.
United States v. Houtchens, 926 F.2d 824, 828 (9th Cir.
1991). "The rationale for this rule is that such a
be advanced without the development of facts outside the
original record," id. (internal quotations
omitted); that is, trial
court proceedings are usually necessary to "develop
as to what counsel did, why it was done, and what, if
prejudice resulted." United States v. Molina , 934
1446 (9th Cir. 1991). There are only two exceptions to
rule: (1) if the factual record is sufficiently
developed, or (2)
when the legal representation is so inadequate that it
ously denies a defendant his Sixth Amendment right to
sel. United States v. Ross, 206 F.3d 896, 900 (9th Cir.
citing United States v. Robinson, 967 F.2d 287, 290 (9th
 Both parties argue that the record is sufficiently
oped to merit immediate consideration of this issue.
it were true that certain aspects of the record are
developed, the record is devoid of facts concerning the
motives of Reyes-Platero's trial counsel in not
downward departures based upon cultural assimilation and
voluntary departure. Thus, we do not know why these
ward departures were not requested. Molina, 934 F.2d at
1446. This factual void makes it impossible for us to
Reyes-Platero's ineffective assistance argument
 Furthermore, the failure to request downward depar-
tures for cultural assimilation or voluntary departure
so obviously inadequate as to deny Reyes-Platero's Sixth
Amendment right to counsel. At sentencing, Reyes-Platero's
counsel successfully argued for a five-point downward
ture from the base offense level the government recom-
mended. With Reyes-Platero's category VI criminal
the five-point departure resulted in a decrease of 31-39
months in the recommended imprisonment range. U.S.S.G.
ch. 5, pt. A. Such successful advocacy is not obviously
Because the facts are insufficiently developed, and
Reyes-Platero's counsel was not obviously inadequate, we
refuse to consider his ineffective assistance argument
direct appeal and affirm his sentence.
DISMISSED IN PART, AFFIRMED IN PART.
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