United States v. Luis Dutton-Myrie ( 2012 )


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  •                                                      NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    No. 11-3629
    _____________
    UNITED STATES OF AMERICA
    v.
    LUIS ANTONIO DUTTON-MYRIE,
    ALSO KNOWN AS SAM MORRIS
    Luis Antonio Dutton-Myrie,
    Appellant
    ________________
    On Appeal from the United States District Court
    for the Middle District of Pennsylvania
    District Court No. 3-07-cr-00445-001
    District Judge: The Honorable A. Richard Caputo
    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
    May 17, 2012
    Before: SMITH, and FISHER, Circuit Judges
    and STEARNS, District Judge
    (Filed: May 18, 2012)
    _____________________
    OPINION
    _____________________
    
    The Honorable Richard G. Stearns, United States District Judge for the United States
    District Court of Massachusetts, sitting by designation.
    1
    SMITH, Circuit Judge.
    An indictment filed in the United States District Court for the Middle District of
    Pennsylvania charged Luis Antonio Dutton-Myrie, a native and citizen of Panama, with
    illegally reentering the United States in violation of 
    8 U.S.C. §§ 1326
    (a) and (b)(2).
    Dutton-Myrie filed a motion to dismiss the indictment, contending that the underlying
    deportation order was invalid under 
    8 U.S.C. § 1326
    (d). The District Court appropriately
    recognized that a motion to dismiss an indictment is “not „a permissible vehicle for
    addressing the sufficiency of the government‟s evidence.‟” United States v. Bergrin, 
    650 F.3d 257
    , 265 (3d Cir. 2011) (quoting United States v. DeLaurentis, 
    230 F.3d 659
    , 660-
    61 (3d Cir. 2000)). It treated Dutton-Myrie‟s submission as a motion under Federal Rule
    of Criminal Procedure 12(b)(2) that it could “determine without a trial of the general
    issue.” After the Court denied the motion, Dutton-Myrie entered a conditional guilty
    plea, preserving his right to challenge the District Court‟s ruling that his deportation order
    did not satisfy the criteria in § 1326(d). The Court sentenced Dutton-Myrie to, inter alia,
    time served. This timely appeal followed.1
    Before us, Dutton-Myrie contends that the District Court erred because he
    demonstrated that his deportation order was invalid under § 1326(d).            We exercise
    plenary review over the District Court‟s determination. United States v. Charleswell, 
    456 F.3d 347
    , 351 (3d Cir. 2006). Under § 1326(d), an alien may avoid conviction for
    1
    The District Court exercised jurisdiction under 
    18 U.S.C. § 3231
    .           We exercise
    jurisdiction under 
    28 U.S.C. § 1291
    .
    2
    unlawful reentry if he “demonstrates that (1) [he] exhausted any administrative remedies
    that may have been available to seek relief against the [deportation] order; (2) the
    deportation proceedings at which the order was issued improperly deprived [him] of the
    opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.”
    
    8 U.S.C. § 1326
    (d). The District Court determined that Dutton-Myrie satisfied the first
    two criteria, but that he failed to show that the deportation order was fundamentally
    unfair.
    In its analysis of § 1326(d)(3), the District Court recognized that in United States
    v. Torres, 
    383 F.3d 92
    , 103 (3d Cir. 2004), we instructed that the question of fundamental
    fairness presents a question of “whether the alien was denied due process.” The District
    Court concluded that Dutton-Myrie had not been deprived of his right to due process in
    the context of the deportation proceeding as he had “effective notice of the charges
    against him and an opportunity to be heard.” In addition, the District Court properly
    noted that an alien challenging the fairness of a removal proceeding must demonstrate
    that he was prejudiced by the procedural defect. Charleswell, 
    456 F.3d at 358
     (holding
    explicitly “that prejudice is a necessary component under [§] 1326(d)”). Dutton-Myrie,
    the Court concluded, failed to make the requisite showing of prejudice.
    Dutton-Myrie asserts that the District Court erred by concluding he could not
    demonstrate prejudice as a result of the procedural errors in his removal proceeding. We
    are not persuaded by his arguments. Even if Dutton-Myrie had pursued an appeal with
    the Board of Immigration Appeals, that decision would not have altered the fact that
    3
    Dutton-Myrie was removable by virtue of the fact that he had overstayed his visa. See 
    8 U.S.C. § 1227
    (a)(1)(B). Although he submits that he could have sought discretionary
    relief under former § 212(c), Dutton-Myrie did not have that avenue of relief open to him
    because he was not a lawful permanent resident.             See 
    8 U.S.C. § 1182
    , 1996
    Amendments, Subsec. (c). Furthermore, as the District Court correctly noted, Dutton-
    Myrie‟s conviction for possession with intent to deliver cocaine under Pennsylvania law
    constituted an aggravated felony that also rendered him subject to removal. 
    8 U.S.C. §§ 1101
    (a)(43)(B) and 1227(a)(2)(A)(iii); see also Garcia v. Attorney Gen., 
    462 F.3d 287
    ,
    293 (3d Cir. 2006) (concluding that a Pennsylvania conviction for possession of a
    controlled substance with intent to distribute qualified as an aggravated felony).
    Accordingly, we will affirm.
    4
    

Document Info

Docket Number: 11-3629

Judges: Fisher, Smith, Stearns

Filed Date: 5/18/2012

Precedential Status: Non-Precedential

Modified Date: 8/5/2023