[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 98-2163

UNITED STATES,

Appellee,

v.

JUAN MOLINUEVO-POLANCO, a/k/a Francisco A. Caban, a/k/a Juan Caba,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]

Before

Boudin, Stahl and Lynch, Circuit Judges.

Ramon Garcia on brief for appellant. Guillermo Gil, United States Attorney, Jorge E. Vega- Pacheco, Assistant United States Attorney, and Camille Velez- Rive, Assistant United States Attorney, on brief for appellee.

March 8, 2000 Per Curiam. Appellant Juan Molinuevo-Polanco pled

guilty to one count of illegally reentering this country

after a prior conviction for an aggravated felony and

deportation in violation of

(b). Prior to

sentencing, he never sought to withdraw his guilty plea, but

this is the relief he seeks on appeal. He contends that his

Fifth Amendment due process rights were violated when

certain government agents failed to advise him of his rights

under Miranda v. Arizona,

(1966), and failed to

advise him of his rights under the Vienna Convention on

Consular Relations or to notify his consulate of his arrest.

The thrust of his argument appears to be that he would not

have made certain incriminating statements to government

agents, or would not have pled guilty, if he had received

the requisite Miranda warnings and if his Vienna Convention

rights had been observed. We affirm for the following

reasons.1

1. We think that the government has adequately

explained in its brief why the Fifth Amendment due process

1We also grant Molinuevo's motion to submit his appeal to the court on the basis of the parties' briefs and without oral argument.

-2- claim fails, at least insofar as it is based on the alleged

violation of the Vienna Convention. We agree that claimant

has not made the requisite showing of prejudice. See United

States v. Ademaj,

(1st Cir.), cert. denied,

(1999) (rejecting Fifth Amendment due process

claim, based on violation of Vienna Convention, on plain

error review because appellant had not shown prejudice due

to the violation). Accordingly, the extent to which

appellant may or may not have enforceable rights under the

Vienna Convention is irrelevant here. See generally United

States v. Li, Nos. 97-2034 et al. (1st Cir. Feb. 29, 2000)

(en banc).

2. There is no need to consider the Miranda claim,

although the government submits proof that it advised

Molinuevo of his Miranda rights before he admitted his guilt

to government agents. By pleading guilty, Molinuevo waived

any Miranda violation. See United States v. Cordero,

(1st Cir. 1994) (noting that an unconditional

guilty plea waives prior non-jurisdictional constitutional

errors and rejecting contention that a claim for suppression

of evidence is a non-waived jurisdictional issue); Acevedo-

Ramos v. United States,

(1st Cir. 1992)

-3- (concluding that guilty plea waivers of affirmative defenses

to prosecution need not be explicit).

In any event, even if we were to consider his claim

on this undeveloped record (the appellant never filed a

motion to suppress below and no suppression hearing based on

any Miranda violation was ever held), we could not find that

the alleged Miranda violation was plain error. For all we

know, Molinuevo may have impliedly or even explicitly waived

his Miranda rights before admitting his guilt. See United

States v. Nunez,

(1st Cir. 1994)

(concluding, after assuming that plain error review of a

waived suppression claim was appropriate, that plain error

could not be shown given the lack of adequate factual

development in the district court); accord United States v.

Davenport,

(7th Cir. 1993).

3. Molinuevo has not explicitly contended that he

did not enter his guilty plea voluntarily, knowingly and

intelligently, and he has not challenged the validity of his

plea hearing under Fed. R. Crim. P. 11. Accordingly, he has

not shown that vacating his guilty plea on direct appeal

would be appropriate. See United States v. Noriega-Millan,

(1st Cir. 1997) (indicating that a

criminal defendant seeking to withdraw his guilty plea for

-4- the first time on direct appeal would have to show a

"substantial defect in the Rule 11 proceeding") (citation

omitted); United States v. McKelvey, No. 99-1264, slip op.

at 6 (1st Cir. Feb. 11, 2000) (indicating that a criminal

defendant seeking to withdraw his guilty plea on direct

appeal would have to show "a fundamental defect [in his plea

proceeding] which inherently results in a complete

miscarriage of justice or an omission inconsistent with the

rudimentary demands of fair procedure") (citation and

internal quotation marks omitted).

4. We note our doubt that Molinuevo's allegedly

unconstitutional confession factored into his decision to

plead guilty. As an undisputed investigative report

appended to the government's brief shows, the government had

ample evidence of his guilt apart from the confession.

Moreover, by the time he pled guilty he was represented by

an attorney who would seem better able to advise him in

connection with his plea than consular authorities.

The conviction and sentence are affirmed. See Loc.

R. 27(c).

-5-