Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-2536
UNITED STATES OF AMERICA,
Appellee,
v.
MANUEL RAMON VARGAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch, Circuit Judge
and Stahl, Senior Circuit Judge.
Mark B. Laroche, by appointment of the court, was on brief for
appellant.
Robert Clark Corrente, United States Attorney, with whom
Donald C. Lockhart and Zechariah Chafee, Assistant United States
Attorneys, were on brief, for appellee.
May 13, 2008
Per Curiam. Appellant Manuel Ramon Vargas pleaded guilty
to one count of illegal reentry following a prior deportation in
violation of 8 U.S.C. § 1326(a). The district court sentenced him
to thirty months' imprisonment. Vargas appeals, contending that
the underlying deportation order failed to comport with due
process.
The elements of illegal reentry are that the defendant
"(1) is an alien, (2) was previously deported, and (3) thereafter
entered, or attempted to enter, the United States without
permission." United States v. Contreras Palacios, 492 F.3d 39, 42
(1st Cir. 2007). An alien may negate the second element via
collateral attack of the underlying deportation order by satisfying
certain criteria enumerated in 8 U.S.C. § 1326(d). Here, Vargas
attempted to obtain relief pursuant to § 1326(d) by filing a motion
to dismiss before the district court. See United States v. Vargas,
479 F. Supp. 2d 252 (D.R.I. 2007) (rejecting Vargas's motion to
dismiss). Now, on appeal, Vargas suggests that the district court
erred by denying his motion to dismiss.
At the plea hearing, Vargas initially expressed a desire
to continue to pursue on appeal his collateral attack against the
prior deportation order. The district court, however, plainly
instructed Vargas that, by pleading guilty, he would waive his
right to appeal his conviction for the crime of illegal reentry.
Because Vargas pleaded guilty following the district court's clear
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and unequivocal admonition, his challenge is foreclosed by Tollett
v. Henderson, 411 U.S. 258 (1973). Under the Tollett doctrine,
subject to narrowly construed exceptions, "a defendant who pleads
guilty unconditionally waives all 'independent claims relating to
the deprivation of constitutional rights that occurred prior to the
entry of the guilty plea.'" United States v. Gaffney, 469 F.3d
211, 214 (1st Cir. 2006) (quoting Tollett, 411 U.S. at 267).
Vargas does not argue that his plea was involuntary, see United
States v. Gonzalez-Mercado, 402 F.3d 294, 298 (1st Cir. 2005), or
that the court lacked jurisdiction, see United States v. Cordero,
42 F.3d 697, 698-99 (1st Cir. 1994). Consequently, Vargas may not
now renew his pre-plea collateral attack against the deportation
order upon which the instant conviction is predicated. See United
States v. Gonzalez, 85 F. App'x 881, 882 (4th Cir. 2004) (per
curiam) (unpublished); United States v. Ortega-Guzman, 76 F. App'x
846, 847-48 (10th Cir. 2003) (unpublished); United States v. Lemus-
Barragan, 5 F. App'x 737, 737-38 (9th Cir. 2001) (per curiam)
(unpublished).
Affirmed.
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