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Case Name:
USA V REYES PLATERO

Case Number:

Date Filed:

99-50234

07/11/00


FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
                                                     No. 99-50234
Plaintiff-Appellee,
                                                     D.C. No.
v.
                                                     CR-97-03413-NAJ
JOSE ALFREDO REYES-PLATERO,
                                                     OPINION
Defendant-Appellant.

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 Gould,
Circuit Judges.

Opinion by Judge Wallace

_________________________________________________________________



COUNSEL

Gerard J. Wasson, Grimes & Warwick, San Diego, California,
for the defendant-appellant.

Darrell M. Padgette, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.

_________________________________________________________________

OPINION

WALLACE, Circuit Judge:

Reyes-Platero appeals from his conviction and sentence as
a deported alien found in the United States in violation of 8
U.S.C. S 1326. The district court had jurisdiction pursuant to
18 U.S.C. S 3231. We do not have jurisdiction over Reyes-
Platero's appeal from his conviction, but do have jurisdiction
over his timely appeal from his sentence pursuant to 18
U.S.C. S 3742. We dismiss in part and affirm in part.

I

Reyes-Platero, a citizen of Mexico, was deported from the
United States twice, most recently on August 26, 1995. After
he re-entered the United States, he was incarcerated in a Cali-
fornia state prison for sexual abuse. On November 10, 1997,
while still incarcerated, he was released into Immigration and
Naturalization Service (INS) custody and his Miranda rights
were read to him in Spanish. He was not advised, however,
that he could contact Mexican consular officials pursuant to
Article 36 of the Vienna Convention on Consular Relations,
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 illegally
near San Ysidro, California, on or about December 1, 1995.

                               7834


Subsequently, he unconditionally pled guilty to being a
deported alien found in the United States, a violation of 8
U.S.C. S 1326.

A probation officer filed a presentence report (PSR) recom-
mending a sixteen-point increase to Reyes-Platero's base
offense level because of his previous deportation for an aggra-
vated felony. Reyes-Platero successfully argued for a five-
point downward departure based upon the modest nature of
the previous felony. Thus, rather than a base offense level of
21, Reyes-Platero's base offense level was calculated at 16.
The district court sentenced him to 46 months' imprisonment.
Reyes-Platero challenges both his conviction and his sen-
tence. We first address his arguments concerning his convic-
tion.

II

Reyes-Platero argues that his conviction should be vacated
because (1) the INS agent who took him into custody did not
inform him that he could contact the Mexican Consulate pur-
suant to Article 36 of the Convention and (2) his trial counsel
rendered ineffective assistance by not attempting to suppress
his incriminating statement in light of the alleged Convention
violation. The government argues that Reyes-Platero waived
these arguments by unconditionally pleading guilty. The
implication of the government's argument is that we do not
have jurisdiction to review the merits of Reyes-Platero's con-
viction. We have jurisdiction to determine our own jurisdic-
tion. Ye v. INS, 2000 WL 732911, at *2 (9th Cir. June 9,
2000).

[1] 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 that
even if the Convention created individually enforceable rights
(a point upon which we expressly reserved judgment), it did
not follow that incriminating evidence obtained in violation of

                               7835


those rights must be suppressed at trial. Id.  at 885-86.
Lombera-Camorlinga, however, did not consider the effect of
an unconditional guilty plea on one's Convention-based argu-
ments; Lombera-Camorlinga pled guilty conditionally and
specifically preserved his Convention-based arguments for
appeal. Id. at 884. Thus, the issue before us is one of first
impression: may one who has unconditionally pled guilty
challenge his conviction by raising treaty-based arguments on
appeal?

[2] In addressing this issue, we are guided by ample case
law concerning the effect of a guilty plea upon earlier consti-
tutional defects. "An unconditional guilty plea constitutes a
waiver of the right to appeal all non-jurisdictional antecedent
rulings and cures all antecedent constitutional  defects."
United States v. Floyd, 108 F.3d 202, 204 (9th Cir. 1997)
(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
      independent claims relating to the deprivation of
      constitutional rights 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 rule
"when the defect in question is a `jurisdictional' one," United
States v. Johnston, 199 F.3d 1015, 1019 n.3 (9th Cir. 1999),
cert. denied, 120 S. Ct. 2206 (2000), this exception is not
applicable here.

[3] The clear effect of the Tollett rule is that we do not have
jurisdiction over the merits of appeals based upon pre-waiver

                               7836


constitutional defects, and we must dismiss that portion of the
appeal. Floyd, 108 F.3d at 203-04. However, unlike the defen-
dant in Tollett, Reyes-Platero raises a defect under the Con-
vention, not the Constitution. That distinction, however, is of
no matter. Treaties, together with the Constitution, form "the
supreme Law of the Land." U.S. Const. art. VI. If a guilty
plea cures a constitutional defect, then it certainly cures a
defect caused by failure to comply with a treaty. United States
v. Guzman-Landeros, 207 F.3d 1034, 1035 (8th Cir. 2000)
(per curiam) ("Guzman-Landeros first argues that he was not
advised of his right to contact his consul. We conclude that
this error, if any, does not constitute a jurisdictional defect,
and was therefore foreclosed by Guzman-Landeros's guilty
plea." (citation omitted)). We join the Eighth Circuit in
extending the Tollett rule to treaties and hold that an uncondi-
tional guilty plea cures any pre-plea treaty defects just as it
cures any pre-plea constitutional defects. Applying this rule to
Reyes-Platero's case, and assuming without deciding, as in
Lombera-Camorlinga, that the Convention creates enforce-
able individual rights, any violation of those rights was cured
by Reyes-Platero's guilty plea.

[4] Notwithstanding an unconditional guilty plea, Tollett
states that a defendant may "attack the voluntary and intelli-
gent character of the guilty plea by showing that the advice
he received from counsel was [inadequate]. " Tollett, 411 U.S.
at 267. In Reyes-Platero's opening brief, he argued that his
trial counsel was ineffective by not informing him of potential
Convention-based arguments. However, only in Reyes-
Platero's reply brief does he direct his ineffective assistance
argument specifically to the voluntary or intelligent nature of
his guilty plea. Because Reyes-Platero failed to challenge that
his guilty plea was voluntary or intelligent in his opening
brief, that argument is waived. United States v. Traynor, 990
F.2d 1153, 1159 (9th Cir. 1993).

Reyes-Platero has waived his arguments challenging his
conviction. We thus do not have jurisdiction to consider the

                               7837


merits of Reyes-Platero's appeal from his conviction, and dis-
miss this portion of his appeal. Floyd, 108 F.3d at 203-04.

III

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 assistance by
failing to request a downward departure, pursuant to U.S.S.G.
S 5K2.0, based on cultural assimilation or voluntary deporta-
tion. This argument is not waived by Reyes-Platero's pleading
guilty, because the alleged ineffectiveness occurred after the
plea was entered. See Tollett, 411 U.S. at 267 (holding that a
voluntary guilty plea waives prior constitutional defects,
thereby implying that one may raise claims of constitutional
defect occurring after the entry of a guilty plea).

[5] Ineffective assistance of counsel arguments are ordinar-
ily inappropriate for direct review and should be brought in
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 claim cannot
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 a record
as to what counsel did, why it was done, and what, if any,
prejudice resulted." United States v. Molina , 934 F.2d 1440,
1446 (9th Cir. 1991). There are only two exceptions to this
rule: (1) if the factual record is sufficiently developed, or (2)
when the legal representation is so inadequate that it obvi-
ously denies a defendant his Sixth Amendment right to coun-
sel. United States v. Ross, 206 F.3d 896, 900 (9th Cir. 2000),
citing United States v. Robinson, 967 F.2d 287, 290 (9th Cir.
1992).

[6] Both parties argue that the record is sufficiently devel-
oped to merit immediate consideration of this issue. Even if
it were true that certain aspects of the record are somewhat

                               7838


developed, the record is devoid of facts concerning the
motives of Reyes-Platero's trial counsel in not requesting
downward departures based upon cultural assimilation and
voluntary departure. Thus, we do not know why these down-
ward departures were not requested. Molina, 934 F.2d at
1446. This factual void makes it impossible for us to address
Reyes-Platero's ineffective assistance argument adequately on
direct review.

[7] Furthermore, the failure to request downward depar-
tures for cultural assimilation or voluntary departure were not
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 depar-
ture from the base offense level the government recom-
mended. With Reyes-Platero's category VI criminal history,
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 inade-
quate.

Because the facts are insufficiently developed, and since
Reyes-Platero's counsel was not obviously inadequate, we
refuse to consider his ineffective assistance argument on
direct appeal and affirm his sentence.

DISMISSED IN PART, AFFIRMED IN PART.

                               7839


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