                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-18-2006

USA v. Elliot
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2612




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"USA v. Elliot" (2006). 2006 Decisions. Paper 1089.
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                                                                      NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT

                                         ___________

                                         No. 05-2612
                                         ___________

                             UNITED STATES OF AMERICA

                                               vs.

                                TEXROY JOSEPH ELLIOT,

                                              Appellant
                                         ___________

                      On Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                              (D.C. Criminal No. 03-cr-00222)
                Chief District Judge: The Honorable Christopher C. Conner
                                       __________

                        Submitted Under Third Circuit LAR 34.1(a)
                                     April 25, 2006

           BEFORE: SCIRICA, Chief Judge, and NYGAARD, Circuit Judge.,
                          and YOHN,* District Judge.



                                    (Filed: May 18, 2006)

                                         ___________



         *Honorable William H. Yohn, Jr., Senior District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
                                OPINION OF THE COURT
                                     ___________


NYGAARD, Circuit Judge.

       Appellant, Texroy Joseph Elliot challenges his conviction and sentence for

illegally reentering the United States following his deportation. He challenges (1) the

District Court’s exclusion of evidence; (2) the sufficiency of the evidence underlying the

jury’s verdict and; (3) the District Court’s refusal to exercise its discretion to grant a him

downward departure based on alleged cultural assimilation, or in the alternative, that his

sentence is unreasonable under United States v. Booker, 543 U.S. 220 (2005).

                                               I.

       Elliot first argues that the District Court improperly excluded evidence he

presented to collaterally attack his deportation order and underlying state convictions. To

launch a successful collateral attack on a deportation order under 8 U.S.C. § 1326(d), an

alien must exhaust any administrative remedies available to seek relief from that order,

the deportation proceedings at which the order was entered must have deprived the alien

of the opportunity for judicial review, and the entry of the order must have been

fundamentally unfair. We have held that “all three [requirements] must be met before an

alien will be permitted to mount a collateral challenge to the underlying removal order.”

United States v. Torres, 383 F.3d 92, 99 (3d Cir. 2004).

       First, and fatal to his appeal, the record reveals that Elliot failed to exhaust his

administrative remedies in the nearly three years between the entry of the order and his

                                               2
deportation. From the entry of the order in 1999 to his 2001 deportation, Elliot was in the

custody of the Commonwealth of Pennsylvania and could have directed the attorney who

represented him at his deportation hearing to appeal the decision of the immigration

judge. Elliot did not do so.

       Elliot also argues that the attorney who represented him at the deportation hearing

was ineffective because he failed to argue that Elliot’s earlier guilty pleas on two drug

charges were the result of ineffective assistance of counsel. His claim is without merit. It

is well settled that Elliot cannot collaterally challenge the lawfulness of the state

convictions underlying the deportation order. See Drakes v. INS, 330 F.3d 600, 601 (3d

Cir. 2003), cert. denied, 540 U.S. 1008 (2003). Elliot’s argument should have been made

on direct appeal, in a post-conviction relief petition or in a federal habeas petition on that

ground.

                                              II.

       Elliot next challenges the sufficiency of the evidence underlying his conviction for

illegal reentry even though he conceded under oath that neither sought nor received

permission before knowingly reentering the United States. Because Elliot failed to raise

this issue before the District Court, we apply a plain error analysis. See United States v.

Knobloch, 131 F.3d 366, 370 (3d Cir. 1997). We may correct an error that was not

objected to in the District Court only if it affects Elliot’s substantial rights. See id. We

must sustain the jury’s verdict if “any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” United States v. Dent, 149 F.3d 180,

                                               3
187 (3d Cir. 1998). We conclude that there was no error, much less plain error, and that

the evidence presented and considered by the jury sufficiently supported the guilty

verdict. The record reflects the following facts. Elliot was born in Jamaica and came to

the United States as a permanent resident, his status contingent upon obeying all

immigration laws. He admitted under oath that he is a citizen of Jamaica and a alien in

the United States. According to the records of the Immigration and Customs

Enforcement Agency (“ICE”), Elliot was deported in 2001 because he was convicted of

drug-related felonies in violation of the immigration laws. See 8 U.S.C. §§ 1326(b)(1)

and (b)(2). He also admitted under oath that he had been deported. He knowingly

returned to the United States and also admitted this under oath. Lastly, he neither sought

nor received permission to reenter from either the Attorney General or the Secretary of

the Department of Homeland Security. Records show that Elliot was unlawfully in the

United States at least by May 2003 when he was arrested and convicted in Pennsylvania

for marijuana possession. However, two separate searches of ICE records by ICE

headquarters produced no evidence that Elliot ever sought or received permission for

reentry, and he later admitted under oath that he did not do so. Based on this evidence,

we conclude that a rational trier of fact could have found the essential elements of the

crime of illegal reentry beyond a reasonable doubt. Consequently, the evidence presented

was more than sufficient to support the jury’s guilty verdict, and it will be sustained.

                                             III.



                                              4
       Finally, we conclude that the District Court understood its authority to depart

downward, lawfully exercised it discretion when it denied Elliot a downward departure1

and appreciated the now-advisory nature of the United States Sentencing Guidelines, and

so lack jurisdiction to review the Court’s refusal to grant a downward departure. See

United States v. Denardi, 892 F.2d 269, 272 (3d Cir. 1989) (“To the extent this appeal

attacks the district court's exercise of discretion in refusing to reduce the sentences below

the sentencing guidelines, it will be dismissed for lack of appellate jurisdiction.”).

                                             IV.

       The Judgment of the District Court will be affirmed.




1
 The District Court denied Elliot’s motion for a downward departure because of his
extensive criminal history, including convictions both preceding and following his
deportation.

                                              5
