United States v. Kaczmarak , 62 F. App'x 510 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
MICHAEL JOHN KACZMARAK, a/k/a
Michael Zbigniew Vonolazewski,
a/k/a Von Olsewski, a/k/a Michael  No. 02-4948
Zbigniew, a/k/a Michal Zbigniew,
a/k/a Michael Zbigniew von
Olswewski, a/k/a Michal Zbigniew
Olszewski,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-02-435-A)
Submitted: April 9, 2003
Decided: April 17, 2003
Before WILKINSON, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Dale Warren Dover, Alexandria, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, Michael J. Elston, Assistant United
States Attorney, Alexandria, Virginia, for Appellee.
2 UNITED STATES v. KACZMARAK
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Michael John Kaczmarak pled guilty to one count of unlawful
attempt to re-enter the United States after deportation in violation of
8 U.S.C. § 1326(a) (2000). On appeal, he contends his due process
rights were violated because of alleged alterations to the order of
removal and collateral documents. He further contends the taking of
his fingerprints when he unlawfully re-entered the country violated
the Fourth Amendment’s protection against unreasonable search and
seizure. Finding no reversible error, we affirm.
In the context of a prosecution for illegal reentry after deportation,
a defendant may collaterally attack a deportation order constituting an
element of the offense if he can show that: (1) he was effectively
deprived of his right to judicial review of the deportation order; (2)
the deportation proceedings were fundamentally unfair; and (3) he has
exhausted any administrative remedies that may have been available
to seek relief against the deportation order. 8 U.S.C. § 1326(d)
(2000); United States v. Mendoza-Lopez, 481 U.S. 828 (1987). All
three conditions must be satisfied. United States v. Wilson, 316 F.3d
506, 509 (4th Cir. 2003). We find that Kaczmarak cannot challenge
the Order of Removal because the proceedings giving rise to the order
were not fundamentally unfair. Kaczmarak failed to show he suffered
prejudice as a result of the alleged defects. Id.We further find the district court did not err by denying Kacz-
marak’s motion to suppress the fingerprint evidence. "Routine border
searches may be conducted without a warrant or a showing of reason-
able suspicion or probable cause." United States v. Montoya de Her-
nandez, 473 U.S. 531, 538 (1985). "A ‘routine’ [border] search is one
that does not seriously invade a traveler’s privacy. In evaluating
whether a search is ‘routine,’ the key variable is the invasion of the
privacy and dignity of the individual." United States v. Kelly, 302
UNITED STATES v. KACZMARAK 3
F.3d 291, 294 (5th Cir. 2002) (internal citations and quotation marks
omitted). We find Kaczmarak’s Fourth Amendment rights were not
violated when authorities took his fingerprints after he was lawfully
detained after entering the country illegally.
We affirm the conviction and sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED