                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-17-1994

USA v. McCalla
Precedential or Non-Precedential:

Docket 93-1908




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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ___________

                           No. 93-1908
                           ___________

          UNITED STATES OF AMERICA

                          vs.

          HURBY SEPTIMUS MCCALLA
          aka TERRANCE GEORGE BEECHAM
          aka MICHAEL G. SMITH
          a/k/a THOMAS HARDING

                Hurby McCalla,
                                Appellant
                           ___________

          Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                 (D.C. Crim. No. 93-cr-00128-1)
                          ___________

                              Argued
                         August 11, 1994
      Before:   MANSMANN, COWEN and McKEE, Circuit Judges.
                     (Filed October 14, 1994)
                           ___________

Michael R. Stiles
  United States Attorney
Walter S. Batty
  Assistant United States Attorney
Eric W. Sitarchuk, Esquire (ARGUED)
Suite 1250
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106

  COUNSEL FOR APPELLEE

Steven A. Morley, Esquire (ARGUED)
Benjamin Franklin House
Suite 400
834 Chestnut Street
Philadelphia, PA 19107

  COUNSEL FOR APPELLANT
                              ___________

                        OPINION OF THE COURT
                             __________


MANSMANN,    Circuit Judge.

            A jury convicted Hurby Septimus McCalla pursuant to 8

U.S.C. § 1326 for his unauthorized reentry into the United States

as an alien who had previously been deported after an aggravated

felony conviction.    At the time of his deportation, McCalla was

given a standard Form I-294 notice which warned that his reentry

into the United States without first procuring the permission of

the United States Attorney General would expose him to a maximum

prison sentence of two years.     The two year penalty indicated on

the form was a misstatement of the actual statutory maximum

penalty of up to 15 years imprisonment.     The main issue we

address is whether the government should have been precluded

under the theory of fair warning, the rule of lenity, or the

doctrine of entrapment from seeking a sentence in excess of two

years and ultimately, whether the district court erred in

sentencing McCalla to a prison term which substantially exceeded

the two years described in the notice.



                                  I.

            Hurby Septimus McCalla1 was deported on or about

April 9, 1991.    At that time, he received and signed Immigration

and Naturalization Service Form I-294, which stated:

1
 .        McCalla has used a variety of aliases. He was
convicted in New Jersey Superior Court on May 3, 1988, for
possession of a controlled dangerous substance with intent to
          Should you wish to return to the United
          States you must write [the United States
          Department of Justice, Immigration and
          Naturalization Service] or the American
          Consular Office nearest your residence abroad
          as to how to obtain permission to return
          after deportation. By law (Title 8 of United
          States Code, Section 1326) any deported
          person who within five years returns without
          permission is guilty of a felony. If
          convicted he may be punished by imprisonment
          of not more than two years and/or a fine of
          not more than $1,000.00.


S.A. 1 (emphasis added).

          The INS Form I-294 given McCalla had not been revised

to reflect changes in section 1326 of Title 8, U.S.C., which had

occurred on November 18, 1988 and November 19, 1990.   The 1988

amendment to section 1326 added a subsection (b), providing for

enhanced penalties where the defendant has had prior felony

convictions.    A second amendment in 1990 increased the associated

maximum fine from $1,000 to $250,000 in accordance with 18 U.S.C.

§ 3571(b)(3).   Consequently, the portions of section 1326




(..continued)
distribute and distribution of a controlled dangerous substance
under the name Michael G. Smith. As a result of that conviction,
McCalla was deported from the United States on April 9, 1991,
under the name Terrance George Beecham. On April 15, 1992,
McCalla was arrested in Philadelphia, Pennsylvania, under the
name, Thomas Harding. Apparently, on June 30, 1992, McCalla was
again arrested, this time under the name, Dennis Clark, but a
fingerprint analysis identified him to be the same person as
Thomas Harding. On January 21, 1993, McCalla admitted that his
true name is Hurby Septimus McCalla. A combination of comparison
photographs and fingerprint analyses compiled from local police
department records and FBI records established that all of the
above names, and other names or spellings, refer to one and the
same Hurby Septimus McCalla.
applicable to McCalla at the time of his deportation were as

follows:
           (a) Subject to subsection (b) of this
           section, any alien who --
                (1) has been arrested and deported
                or excluded and deported, and
                thereafter
                (2) enters . . . or is at any time
                found in, the United States, unless
                (A) prior to his reembarkation at a
                place outside the United States
                . . . the Attorney General has
                expressly consented to such alien's
                reapplying for admission; or (B)
                with respect to an alien previously
                excluded and deported, unless such
                alien shall establish that he was
                not required to obtain such advance
                consent under this chapter or any
                prior Act,

           shall be fined under Title 18, or imprisoned
           not more than 2 years, or both.

           (b) Notwithstanding subsection (a) of this
           section, in the case of any alien described
           in such subsection --
                               * * *
                (2) whose deportation was
                subsequent to a conviction for
                commission of an aggravated felony,
                such alien shall be fined under
                such Title, imprisoned not more
                than 15 years, or both.


8 U.S.C. § 1326 (as amended Nov. 18, 1988, Pub. L. 100-690, 102

Stat. 4471; Nov. 29, 1990, Pub. L. 101-649, 104 Stat. 5059).

           On or about April 15, 1992,2 McCalla was found in

Philadelphia, having reentered the United States without first
2
 .        The indictment charged that McCalla was found in
Philadelphia, Pennsylvania, on or about April 15, 1992, under
circumstances which brought his presence in the United States to
the attention of local police authorities. He was at a night
club when a security guard noticed he was carrying a loaded
applying to the Attorney General of the United States for

admission and receiving her express consent pursuant to section

1326.   He was thus charged with a violation of section

1326(b)(2).

           At trial, the court precluded defense counsel from

raising to the jury the issue of whether McCalla could be

properly charged pursuant to 8 U.S.C. § 1326(b) in light of the

errors contained in Form I-294.   The jury returned a guilty

verdict on the single count indictment.   At sentencing, McCalla

argued that the government was bound to the misstatements made in

Form I-294 in seeking his sentence, and therefore that the

government was precluded from seeking a sentence in excess of 2

years despite the 15 year maximum imprisonment provided in

section 1326(b)(2).   Nonetheless, the court calculated McCalla's

offense range at 100 to 125 months pursuant to the United States

Sentencing Guidelines, and imposed a sentence of 112 months

imprisonment with three years supervised release following

completion of his prison sentence and a financial penalty in the

amount of $50.00.3


(..continued)
pistol and telephoned the police, who subsequently arrested him.
The complaint alleged that McCalla was found in the United States
on or about January 20, 1993. That date coincides with the date
he was placed in the custody of the Immigration and
Naturalization Service after completing sentences for local
offenses.
3
 .        The district court had subject matter jurisdiction
pursuant to 18 U.S.C. § 3231. This is an appeal from a final
judgment of conviction and order of sentence pursuant to 28
U.S.C. § 1291.
                               II.

          The issue of whether due process mandates that the

government be limited to the maximum sentence promulgated by the

government's own inaccurate notice of the current law is one of

first impression in this circuit.

          McCalla argues that due process, fundamental fairness

and the rule of lenity militate against imposition of a prison

sentence in excess of that which the government has clearly

represented it could be.   He further argues that the public

policy supporting the doctrine of entrapment would preclude the

government from receiving a "benefit" from its act of

misrepresentation.   Thus McCalla seeks to have this case remanded

to the district court for resentencing within a two-year sentence

limitation.

          Our sister courts of appeals have recently rejected the

arguments which McCalla raises before us.   In United States v.

Perez-Torres, 15 F.3d 403 (5th Cir. 1994), a case involving the

very same act of misrepresentation on the part of INS, the Court

of Appeals for the Fifth Circuit held:
          Form I-294 is not a criminal statute. Hence,
          the defect [the defendant] complains of lies
          not in the underlying statute, but rather in
          a provision of a document with no relevant
          legal force. As [the defendant] concedes,
          section 1326 clearly and unambiguously
          articulated the penalties associated with a
          reentry offense. Thus, regardless of the
          inaccuracy of Form I-294, the statute under
          which [the defendant] was convicted provided
          notice adequate to satisfy the requirements
          of due process.


Id. at 406.
          Similarly, in reversing the decision of its district

court, the Court of Appeals for the Ninth Circuit held in United

States v. Sanchez-Montoya, 1994 U.S. App. LEXIS 18,742, *2 (9th

Cir. July 26, 1994) that,


         [N]either due process nor principles of
         equitable estoppel precludes imposing a
         prison term exceeding two years for illegal
         reentry on a defendant who had been advised
         erroneously by the INS before deportation
         that the maximum penalty for that offense was
         two years. [citing United States v. Ullyses-
         Salazar, No. 93-50144, Slip op. 6543, 6549,
         6551-52 (9th Cir. June 20, 1994)]. We also
         conclude[] that such circumstances do not
         constitute a valid basis for a downward
         departure. [Citing id. at 6553.]


Accord United States v. Samaniego-Rodriguez, 1994 W.L. 401595

(7th Cir. Aug. 4, 1994) (Form I-294 cannot give rise to a due

process violation and section 1326 unquestionably satisfies all

due process requirements); United States v. Shaw, 1994 W.L.

244362 (7th Cir. June 7, 1994) (pre-deportation warning that

reentry is punishable by a maximum of two years does not render

the 46-month sentence imposed a violation of due process).

          We agree with our sister courts of appeals.   Although

the inaccuracy in Form I-294 was regrettable, perhaps

inexcusable, due process requires that it is the criminal statute
which must clearly set forth the activity which constitutes a

crime and the punishment authorized for committing such a crime.

See United States v. Batchelder, 442 U.S. 114, 121 (1979) (a

statute which ambiguously specifies criminal conduct or the

penalties authorized upon conviction raises a constitutional
question).    Section 1326(b)(2) clearly comports with the due

process requirement of fair notice.

          Similarly, the rule of lenity applies to ambiguous

criminal statutes.    Simpson v. United States, 435 U.S. 6, 14-15

(1978) (ambiguities in either the substantive or sentencing

provisions of criminal statutes justify application of lenity);

United States v. Schneider, 14 F.3d 876, 879 (3d Cir. 1994)

(lenity only applies where reasonable doubt persists concerning

ambit of statute even after review of statutory text, structure,

legislative history and polices).     Section 1326(b)(2) is not

ambiguous and we decline to employ the rule of lenity to override

the indisputable terms of the criminal statute.

             Finally, the defense of entrapment serves to protect

against a deception on the part of the government that induces a

criminal act by "actually implant[ing] the criminal design in the

mind of the defendant."    United States v. Russell, 411 U.S. 423,

436 (1973).    Furthermore, a claim of entrapment requires proof

that the defendant lacked predisposition to commit the crime.

Id. (entrapment defense requires government inducement and lack

of predisposition); see also United States v. Wright, 921 F.2d
42, 44 (3d Cir. 1990), cert. denied, 501 U.S. 1207 (1991).

Neither of those elements is shown here.    Form I-294 did not

mislead McCalla as to what constituted the specific criminal act;

nor do we regard the misstatement as to the punitive sentence

relevant to proving McCalla's predisposition.    McCalla willfully

reentered the United States despite the government's express
notice that such reentry would constitute a felony.   Public

policy militates against equity here.4



                               III.

           McCalla raises other claims which we find meritless.

McCalla claims, for example, that the use of his prior aggravated

felony conviction to enhance his punishment was in violation of

the ex post facto clause.   We hold, however, that because the

violation of section 1326(b) occurred subsequent to the effective

date of the statutory amendment which provided for an enhanced

punishment, there was no ex post facto violation.   The date of

McCalla's prior criminal conduct is not relevant for purposes of

an ex post facto analysis here.   See Gryger v. Burke, 334 U.S.

728, 732 (1948); United States v. Arzate-Nunez, 18 F.3d 730, 734

(9th Cir. 1994) ("[f]or purposes of analyzing . . . statutes

increasing penalties for future crimes based on past crimes, the

relevant `offense' is the current crime, not the predicate

crime").

           McCalla also asserts that evidence of the circumstances

under which his reentry came to the attention of authorities and

of his subsequent arrest processing was unduly prejudicial and

improperly admitted into evidence, and hence that he is entitled

4
 .        At trial, defense counsel argued that the government
should be estopped from proving any elements of section
1326(b)(2) calling for a penalty in excess of two years, the
implication being that McCalla detrimentally relied in good faith
upon the government's misrepresentation in deciding to risk the
commission of a felony. McCalla precluded a finding of good
faith, however, by his willful violation of the criminal law.
to a new trial.   McCalla further contends that he was denied the

effective assistance of counsel because defense counsel failed to

object to the allegedly improper introduction of this evidence.

In ruling on the motion in limine, the court held that the

evidence was admissible to the extent that it was a foundation

for an understanding of the sequence of events which established

McCalla's surreptitious and voluntary presence in the United

States.   Furthermore, in light of McCalla's various aliases, the

evidence helped to establish his identity.    We hold that it was

well within the district court's sound discretion to permit the

evidence, and in light of the overwhelming case against McCalla,

we do not find any evidence of prejudice or a manifest

miscarriage of justice requisite to a finding of ineffective

assistance of counsel raised first on direct appeal.    Moreover,

testimony concerning the basis of McCalla's prior sentence, given

on redirect examination in response to questions asked during

cross-examination, was invited, and admission of that evidence

does not constitute plain error.

           Finally, McCalla asserts that the deportation hearing

which he was afforded in 1991 did not comport with due process or

the statutes and regulations apropos to such hearings.    He argues

that the alleged deficiency of his deportation hearing precludes

using his prior deportation as the basis of the section 1326

charge against him.    Specifically, McCalla asserts that the use

of a telephonic hearing directly contravened the mandate of 8

U.S.C. § 1252(b), which governs the determination of

deportability.    McCalla further alleges that the deportation
order was predicated upon a record of conviction which the

immigration judge never saw, instead relying solely on McCalla's

admission and the representations of the prosecutor that such a

record exists and as to its contents.5

          We acknowledge that a severely deficient deportation

proceeding which effectively deprives the defendant of his right

of direct appeal may preclude use of that deportation as a

predicate to prosecution under section 1326.   See, e.g., United

States v. Mendoza-Lopez, 481 U.S. 828, 838 (1984) ("where the

defects in an administrative proceeding foreclose judicial review

of that proceeding, an alternative means of obtaining judicial

review must be made available before the administrative order may

be used to establish conclusively an element of a criminal

offense").   McCalla has failed to demonstrate, however, that he

was effectively deprived of his right of direct appeal and we

will not dismiss the section 1326 charge against him.




5
 .        We note here that in granting the government's motion
to preclude evidence of the alleged invalidity of McCalla's
deportation, the court held that McCalla had waived his right to
collaterally attack the validity of his deportation proceeding
because he had not raised any due process challenge to the
indictment prior to trial in accordance with the time provisions
set forth in Federal Rule of Criminal Procedure 12 and Local Rule
of Criminal Procedure 11. See Memorandum Order of the District
Court, Criminal Action No. 93-128 (May 11, 1993, at p. 9, S.A.
151). Nevertheless, the court heard the merits of that claim and
ruled that McCalla had failed to meet his burden to establish a
due process violation. S.A. 151-58.
                                 IV.

           For the foregoing reasons, the judgment of sentence

entered on September 17, 1993, against Hurby Septimus McCalla in

the United States District Court for the Eastern District of

Pennsylvania will be affirmed.


_________________________




MCKEE, Circuit Judge, dissenting.

                 While I agree with the majority in all other

respects, I respectfully dissent from Part II of the majority

opinion.   The majority reasons that, despite the fact that the

government disseminated the inaccurate maximum penalty

information printed on form I-294 to McCalla (and countless other

deportees), McCalla's sentence in excess of two years does not

offend due process because the relevant statute gave notice to

all the world of its contents.           Notice of the conduct

that a statute proscribes and the penalty prescribed for such

conduct are fundamental to due process of law.    See McBoyle v.
United States, 283 U.S. 25, 27 (1931).    The statement on form I-

294, did not give McCalla accurate information and fair warning

regarding "what the law intends to do if a certain line is

passed."   Id.   Accordingly, traditional notions of fairness

inherent in the requirement of due process should preclude us
from allowing McCalla to be sentenced to more than the two years

that the government represented to be the maximum sentence.

                  Although the government was justified in its

efforts to incarcerate McCalla based upon his illegal return to

this country, our holding today does not properly consider the

totality of the circumstances of McCalla's deportation and the

context in which he received the "information" in form I-294.

The record before us establishes that once it is determined that

an individual will be deported, the government makes flight

arrangements for the deportee.    At the appointed time, the

deportee is escorted to the airport in handcuffs by two

deportation officers who fingerprint the deportee and are

responsible for making sure that the deportee signs the warrant

of deportation.    Prior to departure the handcuffs are removed,

and the warrant of deportation is read to the deportee and then

given to him or her along with a copy of form I-294.     He or she

is then put on the airplane, and the appropriate travel

documentation is given to an airline attendant.

                  In this coercive atmosphere the government clearly

intends for the deportee to read and rely upon the information

and warnings in each of the documents that are presented to him

or her.   Indeed, McCalla was given form I-294 so that he would

take note of, and heed, the warnings it contained.    We now allow

the government to successfully assert that the contents of the

form are irrelevant to McCalla's notice.
               We charge the defendant with knowledge because of

the unambiguous statute, yet we do not charge the government

agency responsible for enforcing this country's immigration laws

with the same notice, and we excuse the error in this form. It

stands reality on its head to suggest that the unambiguous

statute buried within one particular volume of the United States

Code sitting somewhere upon the shelves in far off law libraries

somehow reaches out to McCalla in these circumstances and trumps

the "information" in form I-294.

               I fail to understand the logic or fairness of a

position which charges this defendant with knowledge based upon

the publication of a statute yet fails to attribute that same

knowledge to duly appointed agents of the Attorney General of the

United States, or the agency of the government responsible for

enforcing immigration laws.   All parties seem to agree that the

INS did not intentionally mislead McCalla because the INS did not

realize that the information contained in form I-294 was wrong

when agents handed it to McCalla.   Yet, this defendant who is not

responsible for enforcing the law, is charged with notice of the

change in the law.

               Courts have traditionally held that one must know

the consequences of an action before one can be held criminally

accountable for the action.   Thus, due process and fair notice

dictate that a defendant cannot be punished when the statute does

not clearly define the criminal conduct.   McBoyle, 283 U.S. at
27. In addition, no penalty can be imposed if a statute does not

prescribe punishment for certain conduct. United States v. Evans,

333 U.S. 483, 495 (1948).    Accordingly, under the circumstances

of this case, it is reasonable to limit the government to the

sentence that it has represented to be the maximum penalty. I

believe fundamental fairness requires nothing less.

                 The rationale asserted by the government and

adopted by the majority elevates the maxim that "ignorance of the

law is no excuse" to a mantra which has hindered realistic

analysis here.    The Supreme Court recently had occasion to limit

the use of this "age old maxim" in Ratzlaf v. United States,

U.S.    , 114 S. Ct. 655 (1994).    Ratzlaf, though clearly

distinguishable, teaches that the existence of a statute cannot

serve to give notice of its contents for all purposes even when a

defendant engages in conduct known to be improper.    Id. at 663.

McCalla was aware of the contents of 8 U.S.C. § 1326(b)(2) just

as the defendant in Ratzlaf was aware of the contents of the

statutes at issue in that case.    Both defendants knew that they

were engaging in conduct that was improper.    The Court in

Ratzlaf, however, held that the defendant could not be charged
with knowledge that his conduct was a crime.   See id. at 658.

Just as the defendant in Ratzlaf could not be charged with

knowledge of the criminal nature of his activity, the

circumstances surrounding McCalla's deportation should preclude

charging him with knowledge of 8 U.S.C. § 1326.
               Thus, absent controlling precedent to the

contrary, I believe that fundamental fairness limits the maximum

penalty to which this defendant should be subjected to that

amount of incarceration which the government told him he could

expect if he were to return illegally.   Therefore, I most

respectfully dissent.
