                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-15-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1448




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                                                           NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 03-1448


                         UNITED STATES OF AMERICA

                                         v.

                                  CALVIN GREY
                               a/k/a CALVIN GRAY

                                    Calvin Grey,

                                                           Appellant


                  On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                          (D.C. Crim. No. 02-00276-01)
                      Honorable Marvin Katz, District Judge


                     Submitted under Third Circuit LAR 34.1(a)
                                 January 12, 2004

           BEFORE: BARRY, SMITH, and GREENBERG, Circuit Judges

                              (Filed: January 15, 2004)


                            OPINION OF THE COURT


GREENBERG, Circuit Judge.

       This matter comes on before this court on Calvin Grey’s (“Grey”) appeal from a
judgment of conviction and sentence entered in this criminal case on February 14, 2003.

The district court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have jurisdiction

under 28 U.S.C. § 1291.

           Grey is a citizen of Jamaica who came to the United States on a visa on or about

November 1986. On December 20, 1989, Grey pleaded guilty in the Court of Common

Pleas of Philadelphia County, Pennsylvania, to statutory rape, in violation of 18 Pa.

Const. Stat. Ann. § 3122 (repealed)1 and corruption of minors, in violation of id. § 6301.

The certified records of the Court of Common Pleas reveal that on the day he pleaded

guilty, December 20, 1989, the court sentenced Grey to time he already had served, i.e.,

from November 8, 1989, to December 20, 1989, to 23 months on his statutory rape

conviction and five years probation on his corruption of minors conviction. Thus, the

sentence was indeterminate with a 23-month maximum. It appears, however, that after

Grey pleaded guilty he was released from custody and placed on probation so that his

confinement was for about six weeks.

           On or about March 30, 1990, the government deported Grey to Jamaica. Grey

never since has sought or received permission from the United States Attorney General to

reenter the United States. Nevertheless, he unlawfully did reenter the country, an action

leading to his indictment on May 9, 2002, for illegally reentering the United States after




  1
      Section 3122 has been replaced by 18 Pa. Cons. Stat. Ann. § 3122.1 (West 2000).

                                              2
previously being deported in violation of 8 U.S.C. §§ 1326(a), (b)(2). 2

           On October 28, 2002, Grey filed a motion to dismiss the indictment in which he

challenged the validity of the 1990 deportation order, alleging that his deportation hearing

was fundamentally unfair and thus denied him due process of law. Then, on November 7,

2002, Grey filed a supplemental motion to dismiss the indictment, arguing that he was

denied effective representation at the deportation hearing because he was not advised that

he might be able to obtain relief from deportation by applying for voluntary departure

under 8 U.S.C. § 1254(e) (1982) (repealed).

           On November 8, 2002, the district court denied both motions, holding that Grey

had not been prejudiced by any alleged deprivation of due process at his deportation

hearing in 1990. Grey then entered into a written plea agreement providing for him to

plead guilty of illegal entry but preserving his right to challenge the district court’s denial

of his motion to dismiss the indictment. After the court sentenced him to a 15-month

custodial term to be followed by a three-year term of supervised release he appealed.3 We

exercise plenary review over the district court’s interpretation and application of 8 U.S.C.

§ 1326. Gibbs v. Cross, 160 F.3d 962, 964 (3d Cir. 1998).

           At the time of his deportation in 1990, 8 U.S.C. § 1251 (1990) provided, in


  2
      The government discovered Grey was here when he was arrested on narcotics charges.
  3
   In his appeal Grey does not challenge the district court’s determination that he was not
prejudiced by his representative’s failure to advise him that he could obtain relief by
applying for voluntary departure under 8 U.S.C. § 1254(e) (1982) (repealed). We
therefore will not address this issue.

                                               3
relevant part, that “[a]ny alien in the United States . . . shall, upon the order of the

Attorney General, be deported who is convicted of a crime involving moral turpitude

committed within five years after entry and either sentenced to confinement or confined

therefor in a prison or corrective institution, for a year or more.”

         In order to establish the elements of illegal reentry under 8 U.S.C. § 1326, the

government must prove that a deportee (1) was arrested for the underlying crime; (2) was

subsequently deported for the underlying crime; and (3) reentered the United States

without the permission of the United States Attorney General. United States v. DeLeon-

Rodriguez, 70 F.3d 764, 766 (3d Cir. 1995). The Supreme Court in United States v.

Mendoza-Lopez, 481 U.S. 828, 837-39, 107 S.Ct. 2148, 2155-56 (1987), held that aliens

may collaterally challenge an underlying deportation proceeding in a criminal prosecution

for illegal reentry. In reaching this result the Court explained that if it allowed a prior

deportation to establish conclusively an element of the offense of illegal reentry, in some

instances there would be no meaningful judicial review of deportation proceedings that

violated an alien’s right to due process of law.

         The parties agree that in order to determine whether Grey successfully can

challenge his underlying deportation order he must satisfy the requirements set forth in 8

U.S.C. § 1326(d), which codified the Supreme Court’s holding in Mendoza-Lopez. That

section provides:

                      (d) Limitation on collateral attack on
                      underlying deportation order

                                               4
                             In a criminal proceeding under this
                     section, an alien may not challenge the validity
                     of the deportation order described in subsection
                     (a)(1) of this section or subsection (b) of this
                     section unless the alien demonstrates that-
                     (1)     the alien exhausted any administrative
                             remedies that may have been available to
                             seek relief against the 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.

        In his brief, Grey argues that his deportation hearing was deficient in several

respects. He maintains that the immigration judge failed to comply with applicable

regulations that the Attorney General had prescribed governing deportation hearings, the

individual who represented him at the hearing failed to provide effective representation,

and he improperly was deprived of an opportunity for judicial review of the deportation

order. Nevertheless, even assuming that Grey is correct in all three contentions, he has

failed to satisfy the requirement of 8 U.S.C. § 1326(d)(3), i.e., by demonstrating that the

entry of the 1990 deportation order was fundamentally unfair.

        As stated above, the provision in effect at the time of Grey’s deportation hearing

in 1990 provided for the deportation of any alien “who is convicted of a crime involving

moral turpitude committed within five years after entry and either sentenced to

confinement or confined therefor in a prison or corrective institution, for a year or more.”

8 U.S.C. § 1251 (1990). Grey does not argue that his convictions for statutory rape and

                                             5
corruption of minors do not qualify as crimes involving “moral turpitude,” and he does

not deny that these crimes were committed within five years after his entry into the United

States.4 Grey does maintain, however, that the entry of the 1990 deportation order was

fundamentally unfair because he was not “sentenced to confinement or confined . . . for a

year or more.” 8 U.S.C. § 1251 (1990).

        Grey was sentenced to time already served, i.e., from November 8, 1989, to

December 20, 1989, to 23 months on his statutory rape conviction. Inasmuch as he

actually was incarcerated for only six weeks, Grey contends that he does not satisfy the

“year or more” requirement of section 1251. We previously have rejected a parallel

argument.

        In Bovkun v. Ashcroft, 283 F.3d 166, 171 (3d Cir. 2002), we held that in

determining whether the term of imprisonment actually imposed when a sentence

specifies a minimum and a maximum sentence satisfies the one-year requirement we

should look to the maximum sentence imposed. In this case the state court sentenced

Grey to a maximum 23-month term which clearly qualifies as a year or more. Grey

attempts to distinguish Bovkun by arguing that inasmuch as his maximum term of

incarceration was less than two years, parole authority was vested with the sentencing

court rather than the Board of Parole. It is true that when an individual is sentenced to a

  4
    Three other courts of appeals have held that statutory rape qualifies as a crime of
moral turpitude. See Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir. 1994); Castle
v. INS, 541 F.2d 1064, 1066 (4th Cir. 1976); Marciano v. INS, 450 F.2d 1022, 1024 (8th
Cir. 1971). We agree with these courts.

                                             6
term of less than two years in Pennsylvania, the sentencing court has authority to grant

parole without supervision by the Board of Parole and, indeed, that apparently was the

situation in Bovkun.5 Pa. Stat. Ann. tit. 61, § 331.26 (West 1999). But we already have

held that it does not matter whether the parole board or the sentencing court has

jurisdiction to grant parole for purposes of a federal court determining the length of the

sentence imposed upon an alien. United States v. Frias, 338 F.3d 206, 211 n.1 (3d Cir.

2003).

         Therefore, even if the immigration judge erred in failing to inform Grey of the

one-year period of incarceration requirement for deportation in 8 U.S.C. § 1251 (1990)

and Grey’s representative was remiss in failing to raise this issue in the immigration

proceeding, Grey did not suffer any prejudice. Moreover, Grey was not prejudiced by

being deprived of his appellate rights in the deportation proceedings, if such be the case,

as an appeal would not have been successful. In short, inasmuch as Grey was convicted

on his plea of guilty in the state court of the commission of a crime of moral turpitude and

sentenced to confinement for a year or more, his deportation was entirely proper and in no

way was it “fundamentally unfair.” 8 U.S.C. § 1326(d)(3).

         For the foregoing reasons, we will affirm the judgment of conviction and

sentence of the district court entered February 14, 2003.




  5
   We note that the cases we have examined reflect a practice of the Pennsylvania state
courts to impose 23-month maximum sentences, thereby retaining parole authority.

                                             7
TO THE CLERK:

      Please file the foregoing not precedential opinion.




                                              /s/ Morton I. Greenberg
                                                        Circuit Judge




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