                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-29-2002

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Precedential or Non-Precedential: Non-Precedential

Docket No. 01-4444




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                                                    NOT PRECEDENTIAL


   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT




                 No. 01-4444




       UNITED STATES OF AMERICA

                       v.

       DEVON ANTHONY FELLOWS,
                         Appellant




Appeal from Judgment of Conviction and Sentence
          in Criminal No. 01-290 in the
           United States District Court
     for the Eastern District of Pennsylvania
       District Judge: Hon. John R. Padova




 Submitted Pursuant to Third Circuit LAR 34.l(a)
             September 20, 2002




Before: Scirica, Alito and McKee, Circuit Judges.

       (Opinion Filed: October 29, 2002)




         MEMORANDUM OPINION
McKEE, Circuit Judge.

        Devon Anthony Fellows appeals his conviction for attempted reentry into the United

States without the consent of the United States Attorney General following deportation.

For the reasons that follow, we will affirm.

                                                     I.

        Inasmuch as we write only for the parties, we need not reiterate the factual or

procedural background of the appeal.

        Fellows first contends that the district court erred in convicting him of violating 8

U.S.C. § 1326 because he was not specifically charged with attempted entry, but was

charged only with actual entry following deportation. The government has conceded that

the crime of illegal entry did not apply under the circumstances. However, Fed. R. Crim. P.

31(c) provides that a criminal defendant may be convicted of “an attempt to commit either

the offense charged or an offense necessarily included therein if the attempt is an offense.”

The crime of illegal entry following deportation under 8 U.S.C. § 1326 includes the crime

of attempted illegal reentry following deportation as a lesser included offense. The statute

applies to any individual who “enters, attempts to enter, or is at any time found in, the

United States.” 8 U.S.C. § 1326(a)(2). The crime of attempted unlawful reentry does not

require proof of any elements in addition to those required for the consummated act of

unlawful reentry. Therefore, the government did not have to specifically indict for an

attempt to convict Fellows of this lesser included offense. See, e.g. United States v.

Dhinsa, 243 F.3d 635, 674 (2d Cir. 2001) (“The indictment need not charge the defendant

                                                     2
with the lesser offense in order for the trial court to submit that offense to the jury”).

           Fellows’ claim that he cannot be convicted because the indictment did not aver the

requisite specific intent must also fail because Fellows failed to preserve the issue by first

raising it before the trial court. Accordingly, we review that claim only for plain error.

United States v. Cotton, 122 S.Ct. 1781, 1785 (2002). We find no plain error here because

Fellows’ rights were not “substantially affected.” Moreover, “[any] error did not seriously

affect the fairness, integrity, or public reputation of judicial proceedings.” Cotton 122

S.Ct. at 1786. The government presented overwhelming and essentially uncontroverted

evidence that Fellows had the specific intent to enter the United States and that he

attempted to do so. Fellows arrived at the Philadelphia airport and attempted to enter the

country using an assumed identity. He went through the difficulty of obtaining a forged

Jamaican passport and a United States non-immigrant visa that contained his photograph,

but someone else’s name. He then boarded a flight bound from Jamaica to Philadelphia.

We do not believe that Fellows’ intent to enter the United States could be much more

evident.

                                                      II.

           Fellows also alleges that his prior deportation was unlawful and he could not,

therefore, properly be convicted of illegal reentry following deportation. Fellows argues

that both the Immigration Judge at his deportation proceedings and the BIA violated his due

process rights when they initially refused to consider a Section 212(c) waiver of

deportation under the Immigration an Nationality Act, 8 U.S.C. § 1182(c). However,

                                                       3
Fellows also waived this argument because he did not object to the validity of his

deportation following the initial deportation proceeding, and he did not raise the issue

either before or during his trial in the district court.

         Under Fed. R. Crim. P. 12, a defendant must raise all “defenses and objections based

on defects in the institution of the prosecution before trial.” Fed. R. Crim. P. 12(b)(1).

Failure to properly raise such an objection “shall constitute waiver thereof, but the court

for cause shown may grant relief from the waiver.” Fed. R. Crim. P. 12(f). In United States

v. Pitt, 193 F.3d 751, 760 (3rd Cir. 1999), we explained that “the necessity for the pretrial

motion to dismiss is obvious unless the evidence supporting the claim of outrageous

government conduct is not known to the defendant prior to trial.” Id. Fellows was

therefore required to challenge the predicate deportation in a pretrial motion in the district

court.

         However, even if Fellows had properly raised this defense, his arguments would still

fail because they do not constitute plain error. Under Fed. R. Crim. P. 52, a court may

notice plain errors affecting “substantial rights” even if they were not previously brought to

the attention of the court. To show plain error, the defendant must demonstrate that “(1) an

error was committed; (2) the error was plain, that is, it is ‘clear’ and ‘obvious;’ and (3) the

error ‘affected [the defendant's] substantial rights.’” United States v. Nappi, 243 F.3d 758,

762 (3rd Cir. 2001) (quoting United States v. Olano, 507 U.S. 725, 734 (1993) and United

States v. Stevens, 223 F.3d 239, 242 (3rd Cir. 2000)).

         Fellows contends that the district court erred when it failed to consider the INS’s

                                                           4
denial of his request for a Section 212(c) waiver. This does not constitute error, however,

because the validity of the prior deportation was not relevant to the charges then pending in

the district court. All the government needed to prove to convict under 8 U.S.C. § 1326

was that Fellows was deported and subsequently reentered, or attempted to reenter, the

United States without prior approval. There was no need to prove that his initial deportation

was lawful. Thus, the district court did not err, plainly or otherwise when it failed to

reexamine the underlying deportation.

        In addition, the district court’s failure to consider this “defense” could not have

affected Fellows’ “substantial rights.” “[I]n most cases, ['affect[s] substantial rights'] means

that the error must have been prejudicial: It must have affected the outcome of the district

court proceedings.” Nappi, 243 F.3d at 768 (quoting Olano, 507 U.S. at 734). The

defendant has the burden of showing prejudice. Id. Nothing the district court did, however,

affected Fellows’ rights. In addition, Fellows was never denied the right to appeal the

adverse rulings of the Immigration Judge or the BIA.

        Finally, even if we decided the merits of the collateral attack on the predicate

deportation, Fellows’ arguments would still fail because he cannot establish the necessary

elements of such an attack. In United States v. Mendoza-Lopez, 481 U.S. 828, 834, 839

(1987), the Supreme Court said that a “collateral challenge to the use of a deportation

proceeding as an element of a criminal offense must be permitted” when the underlying

proceeding is “fundamentally unfair” and when “the deportation proceeding effectively



                                                      5
eliminates the right of the alien to obtain judicial review.” In addition, some courts have

interpreted Mendoza-Lopez as requiring a showing that the procedural deficiencies of the

deportation hearing actually prejudiced the defendant. See, e.g., United States v. Lopez-

Vasquez, 227 F.3d 476, 483 (5th Cir. 2000); United States v. Paredes-Batista, 140 F.3d

367, 378 (2d Cir. 1998). In 1996, Congress effectively codified this test, allowing a

collateral attack only when the alien is able to demonstrate that:

                (1) the alien exhausted any administrative remedies that may
                have been available to seek relief against the order;1
                (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.

8 U.S.C. § 1326(d). Fellows is not able to meet either version of the test.

        First, Fellows cannot show fundamental unfairness in the denial of his request for

waiver of deportation. He relies heavily upon Mendoza-Lopez, but the defendants there

were effectively deprived of their right to appeal their deportation judgments. 481 U.S. at

842. The procedural defects required the dismissal of the indictments for the subsequent

reentry. Id. at 841. Fellows, however, suffered no such procedural defect. Whereas the

defendants in Mendoza-Lopez were denied the opportunity to appeal, Fellows actually did

take an appeal to the BIA. He also had the right to seek judicial review of the deportation

order although he did not exercise that right, and he chose not to file a motion for habeas



   1
    This element is not at issue because Fellows did take an administrative appeal from the
deportation order. Fellows fails, however, to establish the other conditions precedent
elements necessary to a collateral attack on the deportation order.

                                                     6
corpus after the BIA affirmed the deportation order. Thus, the deportation judgment

became final, and we are at a loss to understand how Fellows’ deportation proceeding could

accurately be characterized as fundamentally unfair.

        Moreover, even if we assume that there were procedural deficiencies, Fellows could

not show actual prejudice because he can not establish “a reasonable likelihood that but for

the errors complained of [he] would not have been deported.” Lopez-Vasquez, 227 F.3d at

485 (quoting United States v. Benitez-Villafuerte, 186 F.3d 651, 658-59 (5th Cir. 1999)).

Fellows’ only allegation of prejudice is the opportunity to be considered for a waiver of

deportation under Section 212(c).

        However, nothing on this record even comes close to establishing a “reasonable

likelihood” that he would have obtained a waiver of deportation if he could apply for one.

He has offered no testimony to rebut the substantial criminal record he has accumulated

over the years. Fellows was arrested no less than 11 times for offenses ranging from

disorderly conduct to attempted robbery to sale of controlled substances between the ages

of 19 and 34. He was not employed in the United States and he had no dependents. He has

not offered any evidence that could rise to the level of “social and humane considerations”

justifying his remaining in the United States. His chance of receiving a 212(c) waiver if he

were eligible for one are therefore less than sterling, and we therefore find no prejudice.

        For the foregoing reasons, we hold that the district court did not err when it

convicted Fellows of attempted reentry following deportation and we will affirm the

judgment of the district court.

                                                     7
TO THE CLERK:

     Please file the foregoing opinion.

                                          By the Court,




                                          /s/Theodore A. McKee

                                          CIRCUIT JUDGE




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