F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 24 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4017
(D.C. No. 96-CR-109)
SERGIO LOPEZ-SERRATO, aka (D. Utah)
Alfonso Beltran-Sanchez,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Defendant Sergio Lopez-Serrato appeals the district court's denial of his
motion to dismiss an indictment charging him with reentry after deportation
subsequent to conviction of an aggravated felony, contrary to 8 U.S.C. § 1326.
We affirm.
I.
Defendant has been deported from the United States under various names
on four occasions since 1992. He was deported most recently on March 22, 1995,
following conviction of an aggravated felony as defined in the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(43)--possession of marijuana for sale in
California. It is the policy of Immigration and Naturalization Service to serve
INS Form I-294 on all deportees, advising them of the requirement to obtain
permission before reentry and of penalties faced upon reentry without permission.
Although defendant received the form at his three prior deportations, he did not
receive the form in connection with his most recent deportation. Defendant was
found in the United States in January 1996 and was indicted for violation of 8
U.S.C. § 1326.
Defendant moved for dismissal of the indictment, arguing INS's failure to
serve him with the I-294 form violated his right to due process of law. He argued
that he would not have reentered the United States if he had been informed of the
penalty he would face. Defendant entered a conditional plea of guilty, reserving
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the right to pursue his motion to dismiss. The magistrate judge recommended that
the motion to dismiss be denied. Defendant did not file an objection to the
magistrate's recommendation, but rather appeals from that recommendation.
II.
Failure to object to a magistrate's recommendation amounts to waiver of the
right to appeal the magistrate's ruling. E.g., Ayala v. United States, 980 F.2d
1342, 1352 (10th Cir. 1992). Nevertheless, when we address defendant's
arguments on the merits, we affirm.
We review a ruling on a motion to dismiss an indictment for abuse of
discretion. United States v. Lacey, 86 F.3d 956, 971 (10th Cir.), cert. denied 117
S. Ct. 331 (1996). Outside the context of entrapment, dismissal of charges on due
process grounds generally requires "outrageous governmental conduct," which is
typically found, if at all, only when the government creates the crime or exercises
substantial coercion. See, e.g., United States v. Sneed, 34 F.3d 1570, 1577 (10th
Cir. 1994). Defendant does not allege the government either created the crime or
exercised substantial coercion. Instead, his argument concerns only INS's failure
to give him an I-294 form in connection with his most recent deportation.
Defendant concedes the government is not required to inform a deportee of
possible penalties upon reentry. See United States v. Meraz-Valeta, 26 F.3d 992
(10th Cir. 1994). He also concedes that even when the government provides false
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information in an I-294 form, it does not violate due process. His sole argument
is that "once the INS undertook to impart actual knowledge of the terms of
incarceration and the time limits for re-entry prescribed by section 1326, it had
the obligation to do so . . . with reasonable care and to inform all deportees."
Appellant's rely br. at 4. Defendant argues INS's failure to give him the form,
which INS serves on all deportees by policy, violates a due process requirement
of equal treatment.
Due process "expresses the requirement of 'fundamental fairness,'" Lassiter
v. Department of Social Services of Durham County, 452 U.S. 18, 24 (1981), and
is violated only by conduct which "violates those 'fundamental conceptions of
justice which lie at the base of our civil and political institutions,' and which
define 'the community's sense of fair play and decency,'" United States v.
Lovasco, 431 U.S. 783, 790 (1977) (internal citations omitted). It requires no
extended argument to establish that INS does not deviate from fundamental
conceptions of justice when it neglects to provide a form to a deportee which he
or she has no right to receive and which would advise the deportee (incorrectly as
the form stated the penalty could be imprisonment up to fifteen years when the
maximum penalty at the time of defendant's deportation was twenty years) what
he or she is deemed to already know from the criminal statute itself. See, e.g.,
United States v. Denis-Lamarchez, 64 F.3d 597 (11th Cir. 1995), cert. denied 116
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S.Ct. 799 (1996). Even if we were to accept defendant's argument that INS's
failure to deliver a form that it chose to deliver to all deportees was
fundamentally unfair, "the fact remains that '[t]he limitations of the Due Process
Clause . . . come into play only when the Government activity in question violates
some protected right of the defendant.'" United States v. Payner, 447 U.S. 727,
737 n.9 (1980) (internal citation omitted). "No one has the right to commit a
crime, even if misled by the government as to its enforcement methods." United
States v. Leahey, 434 F.2d 7, 11 (1st Cir. 1970).
Moreover, defendant argues the motion to dismiss should have been granted
because INS "acted negligently in not informing the defendant and the result
violated the defendant's due process rights and fundamental principles of
fairness." Appellant's reply br. at 4-5 (emphasis added). "[T]he Due Process
Clause is simply not implicated" by negligent acts. Daniels v. Williams, 474 U.S.
327, 328 (1986); see also Davidson v. Cannon, 474 U.S. 344, 347 (1986);
Seamons v. Snow, 84 F.3d 1226, 1234 (10th Cir. 1996) (more than negligence
required to trigger due process protections); Archie v. City of Racine, 847 F.2d
1211, 1219-20 (7th Cir. 1988) (same), cert. denied 489 U.S. 1065 (1989); Tallman
v. Reagan, 846 F.2d 494, 495 (8th Cir. 1988) (same).
Defendant argues this case should be controlled by decisions which
suppressed evidence obtained by Internal Revenue Service agents who did not
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follow a publicized IRS policy to give taxpayers a Miranda-like warning after
preliminary inquiries. See Leahey, 434 F.2d 7; United Stated v. Heffner, 420
F.2d 809 (4th Cir. 1969). These cases are distinguishable because, inter alia, the
evidence does not show the INS policy of distributing the I-294 form was
designed for protection of deportees (rather than deterrence of reentry) nor
deliberately publicized to induce reasonable reliance. Cf. Leahey, 434 F.2d at 11
(agencies do not automatically violate due process when they fail to adhere to
their procedures); United States v. Lockyer, 448 F.2d 417, 421 (10th Cir. 1971)
(Leahey does not apply to rule not published as definition of taxpayers' rights).
Indeed, defendant acknowledges "one of the purposes of the I-294 form is
deterrence." Appellant's br. at 12. In addition, these cases do not apply to
negligent agency oversights. See Clemente v. United States, 567 F.2d 1140, 1146
n. 9 (1st Cir. 1977), cert. denied 435 U.S. 1006 (1978).
III.
AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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