                                                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 14-3472
                                   ________________

                            UNITED STATES OF AMERICA

                                             v.

                             RAYMOND PAUL FRANCIS,

                                                        Appellant
                                   ________________

                      Appeal from the United States District Court
                        for the Western District of Pennsylvania
                     (D.C. Criminal Action No. 2-13-cr-00064-001)
                     District Judge: Honorable Terrence F. McVerry
                                   ________________

                       Submitted under Third Circuit LAR 34.1(a)
                                   on April 30, 2015

               Before: FISHER, HARDIMAN and ROTH, Circuit Judges

                             (Opinion filed January 19, 2016)


                                   ________________

                                       OPINION*
                                   ________________

ROTH, Circuit Judge



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
         Raymond Paul Frances1 was convicted of unlawful reentry after deportation in

violation of 8 U.S.C. § 1326. On appeal, he argues that (1) the District Court wrongly

decided that he could not collaterally challenge his deportation and (2) the information

and evidence are insufficient because the government did not allege or prove the

existence of a deportation order. We reject these arguments and will affirm.

    I.   Background

         On March 4, 1993, Frances, a British citizen, entered the United States pursuant to

the Visa Waiver Program (VWP), which permits aliens from designated countries to seek

admission to the United States for up to 90 days as nonimmigrant visitors without

obtaining a visa.2 All applicants for the VWP must sign Form I-94W in which they

waive “any rights to review . . . or to contest, other than on the basis of an application for

asylum, any action in deportation.”3

         After Frances’s authorized stay expired, he remained illegally in the United States.

In 1996, Frances married Bao Chau Huu Lee, a naturalized American citizen, and

subsequently filed an application for an adjustment of status as the spouse of a United

States citizen. While his application was pending, Interpol informed the Maryland State

Police that Frances was wanted in the United Kingdom for drug-related offenses. INS

issued a warrant and deported Frances on August 28, 1997. Two months later, INS

informed Frances that his application for adjustment of status was terminated because of

his deportation.

1
  The correct spelling of appellant’s name is “Frances,” not “Francis” as in the caption.
2
  8 U.S.C. § 1187(a).
3
  Form I-94W; see 8 U.S.C. § 1187(b)(2).
                                               2
          On February 21, 2013, Frances was discovered in Pennsylvania and charged with

unlawful reentry. After a bench trial, the District Court found Frances guilty and

sentenced him to time served and one year supervised release.

    II.   Discussion4

             A. Frances May Not Collaterally Attack His Deportation.

          To collaterally challenge the deportation underlying a defendant’s removal as an

attack on an illegal reentry conviction, the defendant must show 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 the alien of the opportunity for judicial review;” and (3) “the entry

of the order was fundamentally unfair.”5 The District Court correctly determined that

Frances failed to meet these requirements.

          Frances has not shown that he exhausted administrative remedies because he never

challenged the removal—whether at the time of deportation or during the more than

fifteen years between his deportation and when he was found in the United States. Next,

Frances has failed to show that he was improperly deprived of judicial review of his

removal proceeding. Frances argues that the District Court erred in finding that he

waived his right to contest his removal proceeding. We review the finding for plain



4
  The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291. We review the District Court’s factual findings for clear error and
exercise plenary review over its interpretation of the law. United States v. Huet, 665 F.3d
588, 594 (3d Cir. 2012); United States v. Charleswell, 456 F.3d 347, 351 (3d Cir. 2006).
5
  8 U.S.C. § 1326(d).
                                               3
error, as Frances raises this argument for the first time on appeal.6 Because Frances does

not dispute submitting a completed Form I-94W and has not presented any evidence

challenging the validity of his waiver, the District Court did not err in concluding that

Frances waived his right to review.7 The waiver covered removal proceedings during the

pendency of his application for status adjustment.8 Finally, Frances has not demonstrated

that his removal proceeding was fundamentally unfair, because he has not pointed to any

error in the proceeding.9 INS may deport a VWP entrant without providing judicial

review of the removal proceeding, even if the alien had applied for status adjustment.10

          B. Information and Evidence Are Sufficient.

       Frances challenges the information and conviction on the ground that the

government failed to allege and prove the existence of a deportation order. Under §

1326(a), the government must charge and prove that an alien:

              (1) has been denied admission, excluded, deported, or
              removed or has departed the United States while an order of
              exclusion, deportation, or removal is outstanding, and
              thereafter




6
  Gov’t of Virgin Islands v. Rosa, 399 F.3d 283, 293 (3d Cir. 2005).
7
  See Bradley v. Attorney Gen. of United States, 603 F.3d 235, 239 (3d Cir. 2010) (citing
McLeod v. INS, 802 F.2d 89, 95 (3d Cir. 1986)).
8
  Id. at 242.
9
  United States v. Torres, 383 F.3d 92, 103-106 (3d Cir. 2004).
10
   Bradley, 603 F.3d at 242.
                                              4
              (2) enters, attempts to enter, or is at any time found in, the
              United States, unless (A) prior to his reembarkation at a place
              outside the United States or his application for admission
              from foreign contiguous territory, the Attorney General has
              expressly consented to such alien’s reapplying for admission;
              or (B) with respect to an alien previously denied admission
              and removed, unless such alien shall establish that he was not
              required to obtain such advance consent under this chapter or
              any prior Act11

       The information states that Frances (1) is an alien who was deported from the

United States in 1997; (2) knowingly and unlawfully reentered the United States and was

found in Pennsylvania in 2013; and (3) had not applied for or received permission to

return. Moreover, the notice of intent to deport and the warrant of deportation, along

with the actual deportation, are sufficient to prove that an order of deportation was

issued.12 The information sufficiently alleges that Frances violated 8 U.S.C. § 1326.13

       At trial, the parties stipulated that Frances had been deported in 1997, and that

when he was found in the United States in 2013, he was an alien and without permission

to reenter. Thus, reviewing the evidence de novo, we find that it sufficiently supported

Frances’s conviction.14


11
   8 U.S.C. § 1326(a).
12
   See Vera v. Atty Gen., 672 F.3d 187, 192 (3d Cir.) vacated on other grounds, 693 F.3d
416 (3d Cir. 2012) (reasoning that the documents and the agency action had the effect of
an order).
13
   An information is sufficient if it (1) contains the elements of the offense, (2)
sufficiently apprises the defendant of the allegations he must be prepared to meet, and (3)
allows the defendant to plead an acquittal or conviction to prevent future prosecutions for
the same offense. United States v. Huet, 665 F.3d 588, 595 (3d Cir. 2012).
14
   We review a sufficiency of evidence claim de novo, and examine the totality of the
evidence, both direct and circumstantial, and interpret the evidence in the light most
favorable to the government as the verdict winner. United States v. Pavulak, 700 F.3d
651, 668 (3d Cir. 2012).
                                             5
III.   Conclusion

       For the foregoing reasons, we will affirm the District Court’s judgment.




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