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


9-19-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3790




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 05-3790


                           UNITED STATES OF AMERICA

                                            vs.

             RODERICK RANDALL OUTRAM, A/K/A Sean M. Brewster
                        Roderick Randall Outram,
                                                Appellant
                               ____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                        (D.C. Crim No. 03-CR-00115-1 )
                     District Judge: Honorable Yvette Kane
                                  ____________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                September 14, 2006
               Before: SLOVITER, WEIS, and GARTH, Circuit Judges.
                         Filed September 19, 2006
                                  ____________

                                        OPINION


WEIS, Circuit Judge.

             Defendant pleaded guilty to an unlawful re-entry into this country in

violation of 8 U.S.C. § 1326(a) and (b)(2). He was sentenced to fifty-seven months

incarceration under the Guidelines, consecutive to a state sentence he was then serving.

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              Defendant appealed and this Court affirmed the conviction and the District

Court’s decision to impose a consecutive sentence. We remanded, however, for

resentencing in light of United States v. Booker, 543 U.S. 220 (2005). United States v.

Outram, 132 F. App’x 412 (3d Cir. 2005).

              On remand, the District Court held a sentencing hearing and, after

arguments by counsel, reinstated the original sentence. Having reviewed the record in

this case, we find no error and do not find the sentence unreasonable.

              Outram also attempts now to collaterally attack his 1993 removal order,

which was issued in absentia, arguing that it was fundamentally unfair. Initially, we note

that Outram failed to raise this claim in his original appeal of his sentence and is

foreclosed from doing so now. See United States v. Pultrone, 241 F.3d 306, 307-08 (3d

Cir. 2001).

              The challenge also fails on the merits. To prevail on a collateral attack on a

deportation order under 8 U.S.C. § 1326(d), (1) an alien must exhaust any administrative

remedies that may have been available; (2) the deportation proceedings must have

deprived the alien of the opportunity for judicial review; and (3) entry of the order must

have been fundamentally unfair. “[A]ll 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).




                                              2
                Outram has not demonstrated that the entry of the order was fundamentally

unfair. “‘[F]undamental fairness is a question of procedure.’” Id. at 103 (quoting United

States v. Lopez-Ortiz, 313 F.3d 225, 230 (5th Cir. 2002). With respect to removal

proceedings, “‘due process requires that an alien who faces [removal] be provided (1)

notice of the charges against him, (2) a hearing before an executive or administrative

tribunal, and (3) a fair opportunity to be heard.’” Id. at 104 (quoting Lopez-Ortiz, 313

F.3d at 230).

                In the present case, Outram received notice of the removal proceedings and

an opportunity to be heard before an Immigration Judge. He failed, however, to appear at

this hearing. This is not a denial of due process. Further, we note that Outram does not

appear to contest the facts underlying the removal order.

                Accordingly, we will affirm the Judgment of the District Court.




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