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United States v. Bustos De La Pava

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Argued: July 13, 2001

Appeal from a judgment of the United States District Court for the Southern District of New York (Richard M. Berman, Judge) convicting defendant, following a plea of guilty, of illegally reentering the United States after having been deported subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. � 1326(b)(2). Defendant argues that (1) the indictment to which he pleaded guilty was defective because it did not contain an element of his offense-namely, that he was an “alien”; (2) he received ineffective assistance of counsel because his counsel in the District Court did not move to dismiss the indictment on the basis that the Government had failed to comply with the consular notification provision of the Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 (ratified Nov. 24, 1969); and (3) the District Court erred in declining to depart downward from the otherwise applicable sentencing guideline.

Affirmed.

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