GLD-028                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 10-2795
                                       ___________

                           In re: ABRAHAM NEE NTREH,
                                                 Petitioner
                       ____________________________________

                      On a Petition for Writ of Mandamus from the
             United States District Court for the District of the Virgin Islands
                        (Related to D.V.I. Crim. No. 02-cr-00007)
                      District Judge: Honorable Raymond L. Finch
                      ____________________________________

                     Submitted Pursuant to Rule 21, Fed. R. App. P.
                                  November 4, 2010

            Before: AMBRO, CHAGARES and NYGAARD, Circuit Judges

                             (Opinion filed: November 22, 2010)
                                        ___________

                                        OPINION
                                       ___________

PER CURIAM

       Abraham Ntreh, proceeding pro se, petitions for a writ of mandamus directing the

United States District Court for the District of the Virgin Islands to resentence him in

accordance with the decision we issued in his direct appeal. For the reasons that follow,

we will deny the petition.

       In 2003, Ntreh, a Ghanian national, was convicted after a jury trial of unlawful

reentry of a deported alien into the United States and of making false statements to a
United States official. He received a sentence of 14 months in prison. Ntreh served his

sentence and was removed to England on December 28, 2004. In August 2005, we

affirmed Ntreh‟s conviction, vacated his sentence, and remanded the matter for

resentencing in accordance with United States v. Booker, 543 U.S. 220 (2005). United

States v. Ntreh, C.A. No. 04-2993, 142 Fed. Appx. 106 (3d Cir. 2005) (unpublished

decision).

       Following our decision on direct appeal, Ntreh filed a motion to dismiss his

indictment, claiming, among other things, ineffective assistance of counsel. The District

Court denied the motion and we dismissed Ntreh‟s appeal for lack of jurisdiction. Ntreh

then moved for a new trial based on alleged newly discovered evidence. The District

Court denied the motion for a new trial and we again dismissed Ntreh‟s appeal for lack of

jurisdiction. In our order, we explained that the final judgment rule requires a conviction

and imposition of sentence before appellate review. We also noted that, to the extent

Ntreh‟s filings could be construed as requesting mandamus relief directing the District

Court to resentence him, such a request was denied because Ntreh could seek such relief

in District Court.

       On January 28, 2009, Ntreh filed a motion in District Court to expedite his

resentencing and a sentencing hearing was scheduled. The District Court granted the

Government‟s request for a continuance because Ntreh had been removed and the

Government needed more time to arrange for his parole into the United States with the

proper authorities. The Government moved for a second continuance after Immigration
                                             2
and Customs Enforcement (“ICE”) officials notified the Government that it was not in

the agency‟s best interest to parole Ntreh for resentencing because Ntreh had illegally

entered the United States three times. Through counsel, Ntreh did not oppose the motion

and the District Court granted another continuance.

       On July 23, 2009, the day of the rescheduled hearing, Ntreh‟s counsel informed

Ntreh by letter that the re-sentencing did not take place because he was not present and he

had not waived his appearance. Counsel told Ntreh that the Government was not

interested in bringing him to the United States for the hearing, but that he could appear by

telephone or waive his appearance. Ntreh refused to waive his appearance at the hearing

or appear by telephone. On September 24, 2009, counsel for both parties appeared for a

rescheduled sentencing hearing and the District Court continued the matter without

setting a new hearing date.

       Ntreh then filed in District Court a motion to compel compliance with our order on

direct appeal remanding his case for resentencing. Ntreh asserted that he needed to be

resentenced in order to pursue his appeals and that the failure to resentence him violated

his due process rights. The Government opposed Ntreh‟s motion, arguing that Congress

delegated the power to admit aliens to the United States Department of Homeland

Security and ICE, which had refused the Government‟s request to return Ntreh for

resentencing.

       The District Court agreed with the Government and concluded that it could not

supersede the authority of the Department of Homeland Security and its agents by
                                             3
ordering ICE to allow Ntreh to enter the United States for resentencing. The District

Court also stated that Ntreh had not asked the court to review ICE‟s decision nor had he

set forth any basis for finding that ICE acted improperly in denying parole. Ntreh then

filed the present petition for a writ of mandamus asking us to direct the District Court to

resentence him and to require the Government to “employ the procedures necessary to

make that possible.” Petition at 11. Alternatively, Ntreh asserts that we should direct the

District Court to dismiss his indictment.

          The writ of mandamus has traditionally been used to confine an inferior court to a

lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when

it is its duty to do so. In re Patenaude, 210 F.3d 135, 140 (3d Cir. 2000) (citations

omitted). “The writ is a drastic remedy that is seldom issued and its use is discouraged.”

Id. (internal quotation and citation omitted). A petitioner must show that he has no other

means to attain the desired relief and that the right to a writ is clear and indisputable. Id.

at 141.

          Ntreh has not shown that his right to a writ is clear and indisputable. Although we

agree with Ntreh that he has the right to be present at his resentencing hearing, see Fed.

R. Crim. P. 43(a); United States v. Faulks, 201 F.3d 208, 210 (3d Cir. 2000), he has not

shown that the District Court has the authority to compel the Government to return him to

the United States for resentencing where ICE has refused to allow him into the country.

Cf. United States v. Igbonwa, 120 F.3d 437, 443 (3d Cir. 1997) (holding U.S. Attorneys

do not have authority to make promises regarding deportation matters in plea agreements
                                               4
and reversing a district court order directing the United States to take steps to prevent the

defendant‟s deportation). It is also doubtful that the District Court had jurisdiction to

review ICE‟s discretionary denial of parole. See Samirah v. O‟Connell, 335 F.3d 545,

549 (7th Cir. 2003) (applying 8 U.S.C. § 1252(a)(2)(B)(ii)). In addition, even if the

District Court had the power to compel ICE to grant parole, absent a clear abuse of

discretion by ICE, Ntreh does not satisfy the standard for mandamus relief. See Allied

Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980) (“where a matter is committed to

discretion, it cannot be said that a litigant‟s right to a result is „clear and indisputable.‟”).

       We further conclude that Ntreh has not shown that mandamus relief is warranted

because his inability to appeal the denial of his motion for a new trial and motion to

dismiss his indictment violates his due process rights. Although Ntreh‟s inability to

pursue these appeals implicates his right to due process, Ntreh has not established the

requisite prejudice to establish a due process violation. See Burkett v. Cunningham, 826

F.2d 1208, 1222 (3d Cir. 1987) (setting forth relevant factors).1 Furthermore, this is not a

case where Ntreh has been unable to challenge his conviction on appeal. Rather, Ntreh

has only been unable to pursue an appeal of his motion for a new trial and motion to

dismiss his indictment, filed after we affirmed his conviction and remanded his case for

resentencing.


       1
        These factors include: (1) the prevention of oppressive incarceration
pending appeal; (2) the minimization of anxiety and concern of those convicted awaiting
the outcome of their appeals; and (3) limitation of the possibility that a convicted
person‟s grounds for appeal, and his or her defenses in cases of reversal and retrial, might
                                                5
       We recognize that it is unclear if and when Ntreh will be resentenced. However,

we conclude that, absent a showing of a clear and indisputable right to relief, the

extraordinary remedy of a writ of mandamus is not warranted. Accordingly, we will

deny the petition for a writ of mandamus.




be impaired. Id.
                                             6
