UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4834
CLETUS EDIALE, a/k/a Mark Davies,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CR-98-196-CCB)
Submitted: June 22, 1999
Decided: November 2, 1999
Before WILKINS, NIEMEYER, and LUTTIG, Circuit Judges.
_________________________________________________________________
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
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COUNSEL
M. Gordon Tayback, Baltimore, Maryland; C. William Michaels, Bal-
timore, Maryland, for Appellant. Lynne A. Battaglia, United States
Attorney, Barbara S. Sale, Assistant United States Attorney, Balti-
more, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Cletus Ediale, a Nigerian granted political asylum by the United
States, appeals the criminal judgment convicting him of inducement
of a person to travel in interstate commerce as part of a scheme to
obtain money under false pretenses, in violation of 18 U.S.C. § 2314
(1994). Ediale assigns error to the district court's denial of his motion
to suppress statements he made to FBI agents, alleges that sufficient
evidence did not exist to support the counts of conviction, and that the
district court erred in granting him a three-level downward departure
instead of a four-level reduction for his minimal role in the offense.
Finding no error, we affirm in part and dismiss in part.
Ediale contends that the district court erred in denying his motion
to suppress statements he made to FBI agents based on the agents'
failure to inform him that, upon his arrest, he had the right to contact
the Nigerian Consul, as required by the Vienna Convention on Con-
sular Relations, Apr. 24, 1963, art. 36, 21 U.S.T. 77, 101. The Vienna
Convention requires an arresting government to inform a foreign
national who has been arrested of his right to contact his consul. See
id.
Assuming, without deciding, that Ediale has standing to raise this
issue, we find that he is not entitled to relief. Neither party disputes
that Ediale was not informed of his right to contact his consul. How-
ever, rights created by international treaties do not create rights equiv-
alent to constitutional rights. See Murphy v. Netherland, 116 F.3d 97,
100 (4th Cir.), cert. denied, 118 S. Ct. 26 (1997). Ediale therefore
must establish prejudice to prevail. See United States v. Lombera-
Camorlinga, 170 F.3d 1241, 1244 (9th Cir. 1999) ("[T]he defendant
in a criminal proceeding has the initial burden of producing evidence
showing prejudice from the violation of the Convention."); cf. Breard
v. Greene, 118 S. Ct. 1352, 1355 (1998); United States v. Ademaj,
2
170 F.3d 58, 67 (1st Cir. 1999); Waldron v. INS , 17 F.3d 511, 518-19
(2d Cir. 1993).
Ediale testified at the suppression hearing that he was unaware of
his right to contact the Nigerian consulate. He said that if he had been
made aware of the right, he would have availed himself of it. When
asked what assistance the consular authorities could have extended to
him, Ediale replied that he could have been advised of his rights
under American law. Ediale concedes that the FBI agents advised him
of his rights under Miranda v. Arizona, 38 U.S. 436 (1966), and that
he signed a waiver stating that he understood those rights. Ediale does
not demonstrate how assistance from the Nigerian Consulate would
have affected the outcome of his trial. We therefore find that the dis-
trict court did not err in rejecting this claim as a ground to suppress
Ediale's statements.
Next, Ediale argues that the evidence was not sufficient to convict
him of Counts Five and Six. We find the evidence to be sufficient to
convict Ediale on these counts. See Glasser v. United States, 315 U.S.
60, 80 (1942).
Finally, Ediale argues that the district court abused its discretion in
departing downward by three levels instead of four, on account of his
minimal role in the offense. This court lacks jurisdiction under 18
U.S.C. § 3742(a) (1994) to review a district court's refusal to depart
downward, see United States v. Bayerle, 898 F.2d 28, 30 (4th Cir.
1990), or "the extent of the district court's downward departure,
except in instances in which the departure decision resulted in a sen-
tence imposed in violation of law or resulted from an incorrect appli-
cation of the Guidelines." United States v. Hill, 70 F.3d 321, 324 (4th
Cir. 1995). Neither exception applies here.
We therefore affirm the criminal judgment and dismiss the portion
of the appeal challenging the extent of the downward departure.
AFFIRMED IN PART; DISMISSED IN PART
3
United States v. Cletus Ediale
Combined Opinion