USCA1 Opinion

June 13, 1995

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 94-2011

RANDY S. LAPLANTE,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. A. David Mazzone, U.S. District Judge]

___________________

____________________

Before

Cyr, Boudin and Stahl,

Circuit Judges.
______________

____________________

Randy S. Laplante on brief pro se.

_________________
Donald K. Stern,
_______________

United States Attorney, and Mark W. Pearlste

_________________

Assistant United States Attorney, on brief for appellee.

____________________

____________________

Per Curiam.
___________

order

that denied

Randy LaPlante

appeals a

his 28

2255

U.S.C.

district court

motion to

vacate a

sentence

that

violations

was

of the

imposed

terms

of

as

his

result

of

LaPlante's

supervised release.

We

affirm.

As

history

the

district

and claims,

court's order

we will

summarizes

not repeat

them here.

thoroughly

reviewing the

record and

appeal, we

are persuaded

that the district

denied relief on

adequate notice

LaPlante's claim

the parties

that he

of the conditions of

LaPlante's

After

briefs on

court correctly

did not

receive

his supervised release

and his claim that his reentry into the United States did not

violate one of those conditions.

cause for

release

failing to

raise these

revocation (SRR)

LaPlante has failed to show

claims at

hearing or

his supervised

on direct

appeal, and

absent such a showing,

2255 is barred.

raised

prosecutor

announced

when,

United States, 968 F.2d 187,

_____________

While LaPlante

these

claims

argues that he

sooner

erroneously stated

the

28 U.S.C.

See Knight v. Miller, 37 F.2d 769, 774 (1st

___ ______
______

Cir. 1994); Campino v.

_______

Cir. 1990).

review on the merits under

conditions of

because,

that the

LaPlante's

190 (2d

could not

inter
_____

have

alia,
____

the

district judge

had

supervised release

in fact, the clerk had made this announcement, none of

LaPlante's reasons constitute the "cause" required to

relief on these claims under 28

U.S.C.

2255.

obtain

See Murray v.
___ ______

Carrier, 477 U.S. 478,

_______

488 (1986); Magee v.

_____

Harshbarger, 16
___________

F.3d 469, 472 (1st Cir. 1994).1

However,

we note

that LaPlante

at least

arguably had

cause for not previously raising his claim that his

is

unlawfully

convictions.

based

It

on

certain

appears that,

at

invalid

the

time

sentence

Massachusetts

of the

SRR

hearing, LaPlante was not aware that one of those convictions

(i.e.,

the

Brookline district

vacated one week

bring

this

hearing.

earlier.

to the

court

conviction)

Thus, LaPlante was

district

had been

not able

court's attention

at

to

the SRR

Nevertheless, this claim fails on its merits. Even

____________________

1.

Moreover,

claims,

while we need

we note

undisputed

that

conditions

of

that

LaPlante
his

"Notice of

the SRR hearing,

special

oral

release

merits of these
flaws.
notice
at

his

It
of

Country to

his reentry was

Reentry" (hereafter "Notice").

prohibited

the

not complicated.

which Deportation has

LaPlante conceded that

is

initial

Attorney General's permission when

conditions that

Attorney General's
license.

received

received written notice that

Directed and Penalty for

at

serious

Those conditions were

prohibited absent the

signed a

have

supervised

sentencing hearing.
LaPlante later

both

not decide the

he
been
Yet

he violated the

his reentry

absent the

permission and his use of a false drivers

These circumstances indicate that LaPlante received

adequate notice

of the special conditions

that governed his

supervised release. See United States v. Felix, 994 F.2d 550,

___ _____________
_____

552 (8th Cir. 1993);

United States v. Johnson, 763

_____________
_______

900, 903 (W.D. Texas 1991). We also

foregoing "Notice,"

F. Supp.

note that in signing the

LaPlante expressly waived

his right not

to be deported until 72 hours after the service of the

order

of deportation

possible.

But

and requested

C.F.R.

3.4

departure from the United States

an appeal but before

provides

that

an

It thus appears

alien's

constitute a
that LaPlante

of the deportation order when

the "Notice" requesting immediate deportation.

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soon as

subsequent to the taking of

a decision thereon "shall

withdrawal of the appeal...."

withdrew his appeal

deportation as

final

he signed

if the district court had ignored this conviction, this would

only have resulted

in a one point deduction

criminal history score.

from LaPlante's

His criminal history category would

not have changed. It is undisputed that the second conviction

that LaPlante says is invalid is

vacate that

While

is pending in

LaPlante

contends

the West Roxbury

that

conviction is "presumptively

two

the subject of a motion

we

should

to

district court.

hold

void" and deduct an

that

this

additional

points from his criminal history score, we have no basis

for so holding.2

court is affirmed.
________

Accordingly, the judgment of

the district

____________________

2.

Contrary to LaPlante's argument on appeal, neither United

______

States v. Isaacs,
______
______

14 F.3d 106 (1st Cir. 1994), nor Custis v.

______

United States, 114 S. Ct. 1732, 1734 (1994), authorizes this

______________
court to hold that the West Roxbury district court conviction
is "presumptively void" simply
been warned
guilty plea.

that he

because LaPlante may not have

could be deported

as a

Rather, Custis "significantly

______

circumstances under which a

be void. See United States v.
___ _____________

result of

his

restricted" the

prior conviction may be held

to

Cordero, 42 F.3d 697, 701 (1st

_______

Cir. 1994)(noting that Custis prohibits collateral attacks on

______
prior state-court convictions
in violation

of the

unless conviction was obtained

right to counsel).

Those circumstances

are not present here.

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