United States v. Shomade ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4172
AYODEJI SHOMADE,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CR-96-450)
Submitted: September 2, 1997
Decided: September 26, 1997
Before HALL, MURNAGHAN, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Matthew Alan Wartel, Alexandria, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, Phillip Reitinger, Special Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant Ayodeji Shomade appeals his conviction of unlawful re-
entry by an illegal alien after deportation subsequent to a felony con-
viction in violation of 8 U.S.C.A. § 1326 (West Supp. 1997), and
resulting sentence. Finding no reversible error, we affirm.
Shomade, a British citizen, first entered the United States in 1985.
He violated the terms of his admission and was allowed to voluntarily
depart later that year. He re-entered the United States in July 1991
under the Visa Waiver Pilot Program ("VWPP"). 1 The Immigration
and Naturalization Service ("INS") eventually located Shomade in
Georgia in August 1992, where he was held on unrelated state
charges. The INS ordered Shomade deported, and he was deported
without a hearing on August 12, 1992.
Shomade again re-entered the United States from Great Britain
pursuant to the VWPP in February 1995.2 In February 1996, INS offi-
cials located Shomade in Georgia and charged him with violating
§ 1326. Shomade was convicted of that offense and sentenced to six
months imprisonment.3 After serving his sentence, Shomade was
again deported without a hearing in August 1996. Shomade attempted
_________________________________________________________________
1 8 U.S.C.A. § 1187 (West Supp. 1997). This program allows aliens
from certain countries to enter the United States without a visa for a stay
of up to ninety days. To participate in the program, aliens must sign a
form waiving any right "to contest, other than on the basis of an applica-
tion for asylum, any action for deportation against the alien."
§ 1187(b)(2). The record discloses that Shomade signed the appropriate
waiver form each time he re-entered the United States pursuant to the
program.
2 Shomade did not disclose his prior deportation on his waiver form as
required, nor did he seek permission from the Attorney General to re-
enter the country.
3 Shomade appealed this conviction, and the Eleventh Circuit affirmed.
See United States v. Shomade, 113 F.3d 1252 (11th Cir. 1997) (unpub-
lished), petition for cert. filed, 65 U.S.L.W. ___ (U.S. June 16, 1997)
(No. 96-9400).
2
to again re-enter the United States pursuant to the VWPP in October
1996, but he was apprehended at Dulles Airport. That re-entry
resulted in the conviction and sentence before us on appeal.
At trial, Shomade asserted that his prior deportations were invalid
because he was denied due process. Shomade also asserted that he did
not knowingly or intelligently waive his rights when he signed the
waiver form because he did not fully understand the effect of the
waiver. The trial court rejected this assertion, expressly finding that
Shomade, who is a (native born) British citizen who attended college
in the United States and Great Britain and has no difficulty under-
standing English, knowingly and intelligently waived his right to a
hearing prior to deportation when he signed the appropriate waiver
forms.
It is illegal for an alien, who was previously deported, to re-enter
or attempt to re-enter the United States without permission from the
Attorney General. 8 U.S.C.A. § 1326 (West Supp. 1997). This offense
requires that the prior deportation was legal. Shomade contends that
the Government failed to prove this element. Shomade asserts he was
denied due process in his 1992 and 1996 deportations in that he did
not have a hearing and he was not advised of any of his rights, includ-
ing his rights to consult with counsel or his consulate.
Though Shomade may collaterally attack his § 1326 conviction by
demonstrating that his prior deportations were obtained under condi-
tions which were "fundamentally unfair," see United States v.
Mendoza-Lopez, 481 U.S. 828, 837-42 (1987), we find that Sho-
made's collateral attack in this case fails. The VWPP requires that an
alien sign a form waiving any right "to contest, other than on the basis
of an application for asylum, any action for deportation against the
alien." 8 U.S.C.A. § 1187(b)(2) (West Supp. 1997). Shomade signed
such a form prior to his entry into the United States in 1991 and 1995.
Accordingly, he waived the rights he now asserts were improperly
denied. Contrary to his allegations, we find that the record supports
the district court's determination that Shomade knowingly and intelli-
gently signed the waivers. The record discloses Shomade is well-
educated and has no difficulty reading or understanding English.
3
Even if Shomade did not waive his right to contest his prior depor-
tations, he fails to show how he was prejudiced by this error.4 Sho-
made's sole contention on this point is that he might have been
granted voluntary departure if he had a hearing and the opportunity
to consult with counsel or his consulate. This position is speculative
at best. The decision to grant a voluntary departure is highly discre-
tionary, and given Shomade's prior criminal history, it is unlikely he
would have prevailed. We therefore affirm Shomade's conviction and
sentence. We dispense with oral argument because the facts and legal
contentions are adequately presented in the material before the court
and argument would not aid the decisional process.
AFFIRMED
_________________________________________________________________
4 See United States v. Espinoza-Farlo, 34 F.3d 469, 471 (7th Cir. 1994)
(applying harmless error analysis to hold that prior deportation hearing
was not fundamentally unfair).
4