UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 01-10865 Summary Calendar _______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GERMAN RUBI-PEREZ,

Defendant-Appellant.

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Appeal from the United States District Court for the Northern District of Texas Criminal Cause Number 4:00-CR-296-A _________________________________________________________________ March 19, 2002

Before JOLLY, JONES, and SMITH, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

Appellant Rubi-Perez challenges his conviction for

escaping from an INS detention center where he was confined

awaiting deportation, in violation of

(a). He

asserts that the district court should have permitted his attorney

to cross-examine an INS witness for the purpose of showing that the

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. appellant was in custody without any hope of ever being removed

back to Cuba and therefore in violation of his due process rights.

Holding that the district court did not abuse his discretion, we

affirm.

The district court has wide discretion in determining the

relevance of evidence, and his exercise of that discretion is

reviewed only for instances of abuse. United States v. Bryant,

(5th Cir. 1993). Rubi-Perez was charged with

escaping from an INS detention center where he was “lawfully

confined at the direction of the Attorney General” and by virtue of

a final order of removal.

(a). This court has not

addressed whether the illegality of confinement for violation of

the immigration laws constitutes a valid defense in a § 751(a)

prosecution. We have, however, rejected the contention that

conviction under this provision for escape from a federal

correctional institution was invalid because the defendant’s

original sentence for which he was confined was illegal. United

States v. Smith,

(5th Cir. 1976). We held that the

validity of the conviction under which an escapee is confined is

not an element of the offense of unlawfully escaping from

confinement in a federal institution.

See also United States

v. McKim,

(5th Cir. 1975). The district court’s

conclusion that the alleged illegality of Rubi-Perez’s confinement

was irrelevant is therefore correct.

2 Rather than argue the elements of the crime of escape,

Rubi-Perez contends that the Supreme Court’s recent decision

holding indefinite detention of illegal aliens to be

unconstitutional “vindicates” his position. Zadvydas v. Davis,

,

(2001). Zadvydas was decided

approximately three months after Rubi-Perez’s trial. The federal

escape statute was not at issue in Zadvydas and, as the government

argues, the case does not authorize an alien simply to escape from

INS detention once he believes his detention has become unlawful.

At most, that case may be helpful to Rubi-Perez in establishing the

unreasonableness of his continued detention after his term of

imprisonment for escape ends.

For these reasons, the judgment of conviction is

AFFIRMED.

3