United States v. Fellows , 50 F. App'x 82 ( 2002 )

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
10-29-2002
USA v. Fellows
Precedential or Non-Precedential: Non-Precedential
Docket No. 01-4444
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-4444
UNITED STATES OF AMERICA
v.
DEVON ANTHONY FELLOWS,
Appellant
Appeal from Judgment of Conviction and Sentence
in Criminal No. 01-290 in the
United States District Court
for the Eastern District of Pennsylvania
District Judge: Hon. John R. Padova
Submitted Pursuant to Third Circuit LAR 34.l(a)
September 20, 2002
Before: Scirica, Alito and McKee, Circuit Judges.
(Opinion Filed: October 29, 2002)
MEMORANDUM OPINION
McKEE, Circuit Judge.
Devon Anthony Fellows appeals his conviction for attempted reentry into the United
States without the consent of the United States Attorney General following deportation.
For the reasons that follow, we will affirm.
I.
Inasmuch as we write only for the parties, we need not reiterate the factual or
procedural background of the appeal.
Fellows first contends that the district court erred in convicting him of violating 8
U.S.C. § 1326 because he was not specifically charged with attempted entry, but was
charged only with actual entry following deportation. The government has conceded that
the crime of illegal entry did not apply under the circumstances. However, Fed. R. Crim. P.
31(c) provides that a criminal defendant may be convicted of “an attempt to commit either
the offense charged or an offense necessarily included therein if the attempt is an offense.”
The crime of illegal entry following deportation under 8 U.S.C. § 1326 includes the crime
of attempted illegal reentry following deportation as a lesser included offense. The statute
applies to any individual who “enters, attempts to enter, or is at any time found in, the
United States.” 8 U.S.C. § 1326(a)(2). The crime of attempted unlawful reentry does not
require proof of any elements in addition to those required for the consummated act of
unlawful reentry. Therefore, the government did not have to specifically indict for an
attempt to convict Fellows of this lesser included offense. See, e.g. United States v.
Dhinsa, 243 F.3d 635, 674 (2d Cir. 2001) (“The indictment need not charge the defendant
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with the lesser offense in order for the trial court to submit that offense to the jury”).
Fellows’ claim that he cannot be convicted because the indictment did not aver the
requisite specific intent must also fail because Fellows failed to preserve the issue by first
raising it before the trial court. Accordingly, we review that claim only for plain error.
United States v. Cotton, 122 S.Ct. 1781, 1785 (2002). We find no plain error here because
Fellows’ rights were not “substantially affected.” Moreover, “[any] error did not seriously
affect the fairness, integrity, or public reputation of judicial proceedings.” Cotton 122
S.Ct. at 1786. The government presented overwhelming and essentially uncontroverted
evidence that Fellows had the specific intent to enter the United States and that he
attempted to do so. Fellows arrived at the Philadelphia airport and attempted to enter the
country using an assumed identity. He went through the difficulty of obtaining a forged
Jamaican passport and a United States non-immigrant visa that contained his photograph,
but someone else’s name. He then boarded a flight bound from Jamaica to Philadelphia.
We do not believe that Fellows’ intent to enter the United States could be much more
evident.
II.
Fellows also alleges that his prior deportation was unlawful and he could not,
therefore, properly be convicted of illegal reentry following deportation. Fellows argues
that both the Immigration Judge at his deportation proceedings and the BIA violated his due
process rights when they initially refused to consider a Section 212(c) waiver of
deportation under the Immigration an Nationality Act, 8 U.S.C. § 1182(c). However,
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Fellows also waived this argument because he did not object to the validity of his
deportation following the initial deportation proceeding, and he did not raise the issue
either before or during his trial in the district court.
Under Fed. R. Crim. P. 12, a defendant must raise all “defenses and objections based
on defects in the institution of the prosecution before trial.” Fed. R. Crim. P. 12(b)(1).
Failure to properly raise such an objection “shall constitute waiver thereof, but the court
for cause shown may grant relief from the waiver.” Fed. R. Crim. P. 12(f). In United States
v. Pitt, 193 F.3d 751, 760 (3rd Cir. 1999), we explained that “the necessity for the pretrial
motion to dismiss is obvious unless the evidence supporting the claim of outrageous
government conduct is not known to the defendant prior to trial.” Id. Fellows was
therefore required to challenge the predicate deportation in a pretrial motion in the district
court.
However, even if Fellows had properly raised this defense, his arguments would still
fail because they do not constitute plain error. Under Fed. R. Crim. P. 52, a court may
notice plain errors affecting “substantial rights” even if they were not previously brought to
the attention of the court. To show plain error, the defendant must demonstrate that “(1) an
error was committed; (2) the error was plain, that is, it is ‘clear’ and ‘obvious;’ and (3) the
error ‘affected [the defendant's] substantial rights.’” United States v. Nappi, 243 F.3d 758,
762 (3rd Cir. 2001) (quoting United States v. Olano, 507 U.S. 725, 734 (1993) and United
States v. Stevens, 223 F.3d 239, 242 (3rd Cir. 2000)).
Fellows contends that the district court erred when it failed to consider the INS’s
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denial of his request for a Section 212(c) waiver. This does not constitute error, however,
because the validity of the prior deportation was not relevant to the charges then pending in
the district court. All the government needed to prove to convict under 8 U.S.C. § 1326was that Fellows was deported and subsequently reentered, or attempted to reenter, the
United States without prior approval. There was no need to prove that his initial deportation
was lawful. Thus, the district court did not err, plainly or otherwise when it failed to
reexamine the underlying deportation.
In addition, the district court’s failure to consider this “defense” could not have
affected Fellows’ “substantial rights.” “[I]n most cases, ['affect[s] substantial rights'] means
that the error must have been prejudicial: It must have affected the outcome of the district
court proceedings.” Nappi, 243 F.3d at 768 (quoting Olano, 507 U.S. at 734). The
defendant has the burden of showing prejudice. Id. Nothing the district court did, however,
affected Fellows’ rights. In addition, Fellows was never denied the right to appeal the
adverse rulings of the Immigration Judge or the BIA.
Finally, even if we decided the merits of the collateral attack on the predicate
deportation, Fellows’ arguments would still fail because he cannot establish the necessary
elements of such an attack. In United States v. Mendoza-Lopez, 481 U.S. 828, 834, 839
(1987), the Supreme Court said that a “collateral challenge to the use of a deportation
proceeding as an element of a criminal offense must be permitted” when the underlying
proceeding is “fundamentally unfair” and when “the deportation proceeding effectively
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eliminates the right of the alien to obtain judicial review.” In addition, some courts have
interpreted Mendoza-Lopez as requiring a showing that the procedural deficiencies of the
deportation hearing actually prejudiced the defendant. See, e.g., United States v. Lopez-
Vasquez, 227 F.3d 476, 483 (5th Cir. 2000); United States v. Paredes-Batista, 140 F.3d
367, 378 (2d Cir. 1998). In 1996, Congress effectively codified this test, allowing a
collateral attack only when the alien is able to demonstrate that:
(1) the alien exhausted any administrative remedies that may
have been available to seek relief against the order;1
(2) the deportation proceedings at which the order was issued
improperly deprived the alien of the opportunity for judicial
review; and
(3) the entry of the order was fundamentally unfair.
8 U.S.C. § 1326(d). Fellows is not able to meet either version of the test.
First, Fellows cannot show fundamental unfairness in the denial of his request for
waiver of deportation. He relies heavily upon Mendoza-Lopez, but the defendants there
were effectively deprived of their right to appeal their deportation judgments. 481 U.S. at
842. The procedural defects required the dismissal of the indictments for the subsequent
reentry. Id. at 841. Fellows, however, suffered no such procedural defect. Whereas the
defendants in Mendoza-Lopez were denied the opportunity to appeal, Fellows actually did
take an appeal to the BIA. He also had the right to seek judicial review of the deportation
order although he did not exercise that right, and he chose not to file a motion for habeas
1
This element is not at issue because Fellows did take an administrative appeal from the
deportation order. Fellows fails, however, to establish the other conditions precedent
elements necessary to a collateral attack on the deportation order.
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corpus after the BIA affirmed the deportation order. Thus, the deportation judgment
became final, and we are at a loss to understand how Fellows’ deportation proceeding could
accurately be characterized as fundamentally unfair.
Moreover, even if we assume that there were procedural deficiencies, Fellows could
not show actual prejudice because he can not establish “a reasonable likelihood that but for
the errors complained of [he] would not have been deported.” Lopez-Vasquez, 227 F.3d at
485 (quoting United States v. Benitez-Villafuerte, 186 F.3d 651, 658-59 (5th Cir. 1999)).
Fellows’ only allegation of prejudice is the opportunity to be considered for a waiver of
deportation under Section 212(c).
However, nothing on this record even comes close to establishing a “reasonable
likelihood” that he would have obtained a waiver of deportation if he could apply for one.
He has offered no testimony to rebut the substantial criminal record he has accumulated
over the years. Fellows was arrested no less than 11 times for offenses ranging from
disorderly conduct to attempted robbery to sale of controlled substances between the ages
of 19 and 34. He was not employed in the United States and he had no dependents. He has
not offered any evidence that could rise to the level of “social and humane considerations”
justifying his remaining in the United States. His chance of receiving a 212(c) waiver if he
were eligible for one are therefore less than sterling, and we therefore find no prejudice.
For the foregoing reasons, we hold that the district court did not err when it
convicted Fellows of attempted reentry following deportation and we will affirm the
judgment of the district court.
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TO THE CLERK:
Please file the foregoing opinion.
By the Court,
/s/Theodore A. McKee
CIRCUIT JUDGE
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