Opinion
D.C. No. CR-99-00347-01-RGS
Editorial Note:This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted Oct. 31, 2000.
Appeal from the United States District Court for the District of Arizona, Roger G. Strand, District Judge, Presiding.
Before B. FLETCHER, O'SCANNLAIN, and GOULD, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
Appellant Jesus Villasenor-Lopez ("Villasenor-Lopez") pled guilty to a one-count indictment charging him with being a deported alien found in the United States, pursuant to 8 U.S.C. § 1326(a). The United States District Court for the District of Arizona increased Villasenor-Lopez's offense level sixteen levels based on his commission of two prior aggravated felonies and sentenced him to 63 months custody and 36 months supervised release pursuant to 8 U.S .C. § 1326(b)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
Villasenor-Lopez makes several arguments related to his contention that the district court erroneously denied his motions to suppress statements pertaining to his 1989 deportation and 1998 removal hearings.
First, Villasenor-Lopez argues that Federal Rule of Criminal Procedure 12(f) bars as untimely the government's responses and required that the district court grant these motions. We disagree. Rule 12(f) does not require that the district court grant Villasenor-Lopez's motions simply because the government's responses were untimely. Applicable local rules do not require that the district court grant these motions even if the responses were untimely. District of Arizona Local Rules, Rule 1.10. Further, because the district court allowed the defense five additional days to respond, we conclude that Villasenor-Lopez suffered no prejudice.
Second, Villasenor-Lopez collaterally challenges the 1989 deportation proceeding, alleging his due process rights were violated because he was not advised of his Miranda rights. Aliens are generally not required to be advised of Miranda rights during deportation hearings. United States v. Solano-Godines, 120 F.3d 957, 960 (9th Cir.1997). Villasenor-Lopez has not established a basis to invoke an exception to this rule. United States v. Alderete-Duras, 743 F.2d 645, 647-48 (9th Cir.1984) (to invoke exception, statements must result from coercion or other improper behavior on the part of immigration officials). Furthermore, the record does not support Villasenor-Lopez's contention that the Immigration Judge knew of his previous deportation and thus had reason to believe that Villasenor-Lopez's responses were potentially self-incriminating. Solano-Godines, 120 F.3d at 961-62 (questioning from immigration official amounted to an interrogation, requiring Miranda warnings, because official had reason to believe his questions were likely to elicit an incriminating response).
Third, Villasenor-Lopez collaterally challenges both the 1989 and 1998 proceedings, asserting that the immigration official failed to inform him of his right to contact the Mexican Consulate in violation of the Vienna Convention on Consular Rights ("Vienna Convention"). However, any failure to inform an alien of consular rights protected by the Vienna Convention does not create enforceable rights to exclusion of evidence. United States v. Lombera-Camorlinga, 206 F.3d 882, 884-85 (9th Cir.2000) (en banc).
In addition, Villasenor-Lopez has not met his burden of showing prejudice resulting from the INS's alleged violations during the 1989 and 1998 proceedings of its own regulation, 8 C.F.R. § 242.2(e), requiring that officials inform aliens of their consular rights. Villasenor-Lopez's assertion of alleged prejudice is based on an affidavit of a consular official that was not admitted into evidence. Even if this evidence had been admitted, we have held an affidavit from a consular official alone is insufficient to establish prejudice from a violation of § 242.2(e), and that "concrete evidence" of effect on outcome of deportation is required. Here, there is no concrete evidence of prejudice. See United States v. Cerda Pena, 799 F.2d 1374, 1378-89 (9th Cir.1986).
Villasenor-Lopez challenges the district court's discretionary refusal to grant a downward departure in sentencing. We cannot review a district court's discretionary decision not to depart downward from the Sentencing Guidelines. United States v. Frega, 179 F.3d 793, 811 n. 22 (9th Cir.1999). Because the district court was not acting pursuant to the erroneous belief that it lacked authority to depart, this court does not have jurisdiction to review the sentence. United States v. Eaton, 31 F.3d 789, 792-93 (9th Cir.1994).
We note that the judgment references section 8 U.S.C. § 1326(b)(2), which is a sentencing provision and not a separate crime. Almendarez-Torres v. United States, 118 S.Ct. 1219, 1226 (1998); United States v. Alviso, 152 F.3d 1195, 1199 (9th Cir.1998). This circuit has ruled that "[t]his type of error ... is at most clerical and may be corrected pursuant to Rule 36 of the Federal Rules of Criminal Procedure without the need for a new trial or a new sentencing hearing." United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000). We remand to the district court to strike reference to section 1326(b)(2) so that the judgment will reflect that Villasenor-Lopez was convicted of only one punishable offense, violation of 8 U.S.C. section 1326(a). 28 U.S.C. § 2106; Rivera-Sanchez at 1062.
We AFFIRM and REMAND for further proceedings consistent with this disposition.