                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-27-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1169




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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 08-1169
                                      ____________

                            UNITED STATES OF AMERICA

                                              v.

                                 RIEL CHARLESWELL,
                                                  Appellant
                                     ____________

                 On Appeal from the District Court of the Virgin Islands
                                 Division of St. Thomas
                                (D.C. No. 02-cr-00158)
                      District Judges: Honorable James T. Giles
                                     ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  December 8, 2008

             Before: FISHER, JORDAN and STAPLETON, Circuit Judges.

                                (Filed: January 27, 2009 )
                                      ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       In 2004, Riel Charleswell was convicted for illegal reentry into the United States

in violation of 8 U.S.C. § 1326(a) and (b)(2). In a prior appeal to this Court, he attempted

to collaterally attack his deportation order and a subsequent reinstatement of deportation
order. In 2006, we vacated his conviction and remanded the case to the District Court for

further consideration. On remand, the District Court found that he failed to demonstrate

prejudice with respect to his reinstatement order, and therefore he could not meet the final

requirement for collaterally attacking that order. Consequently, the District Court

reinstated Charleswell’s illegal reentry conviction. Charleswell appeals the District

Court’s decision and continues to argue that his conviction should be vacated because it

was based on fundamentally unfair and prejudicial underlying proceedings. For the

reasons set forth below, we will affirm.

                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.1

       In 1987, Charleswell was convicted in Maryland for possession of marijuana with

intent to distribute, and based on this conviction, in 1991, the Immigration and

Naturalization Service (INS) initiated deportation proceedings against him (“1991

Deportation”). Although Charleswell was born in the British Virgin Islands, at the time

of the deportation proceeding he was a permanent resident of the United States, having

obtained that status at the age of three. At the deportation hearing, the Immigration Judge




       1
        The facts are provided in more detail in our first opinion in this case. See United
States v. Charleswell, 456 F.3d 347 (3d Cir. 2006).

                                              2
(IJ) denied Charleswell’s request for discretionary relief based upon the IJ’s troubling

misconception that St. Thomas was not a territory of the United States. However,

Charleswell did not appeal this order and was subsequently deported to the British Virgin

Islands.

       In 1997, authorities found Charleswell in Maryland and arrested and charged him

with illegal reentry into the United States in violation of 8 U.S.C. § 1326. Charleswell

moved to dismiss the indictment, arguing that the 1991 Deportation proceeding was

fundamentally unfair. The district court dismissed this motion, and, following a

conditional guilty plea, sentenced Charleswell to 49 months of imprisonment. The United

States Court of Appeals for the Fourth Circuit affirmed the district court’s judgment, see

United States v. Charleswell, 173 F.3d 425 (4th Cir. 1999), and the INS issued a Notice

of Intent to Reinstate Charleswell’s 1991 Deportation. Pursuant to the notice, the INS

proceeded to deport Charleswell (“2001 Reinstatement”).

       In 2002, authorities found Charleswell in St. Thomas and charged him with illegal

reentry into the United States in violation of 8 U.S.C. § 1326(a) and (b)(2). Charleswell

moved to have the indictment dismissed on the grounds that the 1991 Deportation and the

2001 Reinstatement were fundamentally unfair. The District Court denied the motion, the

matter proceeded to trial, and on January 26, 2004, the jury returned a guilty verdict.

Charleswell appealed his 2004 conviction to our Court, seeking to collaterally attack the

1991 Deportation and the 2001 Reinstatement. See United States v. Charleswell, 456



                                             3
F.3d 347 (3d Cir. 2006). With respect to the 1991 Deportation, we held that Charleswell

was “unable to demonstrate he was effectively denied the right to obtain judicial review”

from this order, and therefore failed to satisfy the requirements for collaterally attacking

such an order. Id. at 353. With respect to the 2001 Reinstatement, we held that

Charleswell was denied the opportunity for judicial review of this order. We concluded

that “the INS’s failure to inform Charleswell of his statutorily prescribed right to seek an

appeal of his reinstatement order, combined with the misleading language contained in

the reinstatement Notice of Intent form, is a fundamental defect of the nature that, if

prejudicial, renders the proceeding fundamentally unfair.” Id. at 360. Accordingly, we

vacated his conviction and remanded to the District Court to determine if Charleswell was

prejudiced by this order. Id. at 354. On remand, the District Court determined that

Charleswell failed to demonstrate that he was prejudiced by the 2001 Reinstatement and

therefore reentered his 2004 conviction. This decision is currently before us on appeal.

                                              II.

       The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231,

and we have jurisdiction to review the District Court’s final order pursuant to 28 U.S.C.

§ 1291. “We review the District Court’s determination precluding Charleswell from

collaterally attacking his deportation de novo. We also review the District Court’s factual

findings for clear error and we have plenary review over its decisions of law.”

Charleswell, 456 F.3d at 351 (internal citations omitted).



                                              4
                                             III.

       On appeal, Charleswell continues to argue that he was improperly denied judicial

review of both the 1991 Deportation and the 2001 Reinstatement and that these

deprivations resulted in prejudice, thereby satisfying the requirements for collateral attack

and justifying the reversal of his 2004 conviction. In order to mount a successful

collateral attack of a deportation or reinstatement order, an alien must establish three

things: (1) the exhaustion of any administrative remedies that may have been available;

(2) the improper deprivation of the opportunity to obtain judicial review from the

deportation proceeding; and (3) the fundamental unfairness of the entry of the order. See

8 U.S.C. § 1326(d); United States v. Mendoza-Lopez, 481 U.S. 828, 834-37 (1987);

United States v. Torres, 383 F.3d 92, 98-99 (3d Cir. 2004). To demonstrate that a

proceeding is fundamentally unfair “the alien must establish both that some fundamental

error occurred and that as a result of that fundamental error he suffered prejudice.”

Charleswell, 456 F.3d at 358. Moreover, “prejudice requires a reasonable likelihood that

the result would have been different if the error in the deportation proceeding had not

occurred.” Id. at 362.

       Turning first to the 1991 Deportation, Charleswell contends that the District Court

erred in holding that this Court foreclosed consideration of his challenge to that order.

Contrary to Charleswell’s assertion, our earlier opinion clearly stated: “[B]ecause

Charleswell is unable to demonstrate he was effectively denied the right to obtain judicial



                                              5
review from [the] 1991 Deportation proceeding, he fails to satisfy the Mendoza-Lopez

requirements and may not collaterally challenge the 1991 Deportation order.” Id. at 353.

Thus, the District Court properly concluded that the only issue for it to determine on

remand was whether Charleswell was able to demonstrate prejudice as to the 2001

Reinstatement.2

       Next, turning to the 2001 Reinstatement, Charleswell argues that he was entitled to

discretionary relief under the predecessor to the Illegal Immigrant Reform and Immigrant

Responsibility Act (IIRIRA) and as a result the new reinstatement provision found in

§ 241(a)(5) of IIRIRA, 8 U.S.C. § 1231(a)(5), was impermissibly retroactive as applied to

him because it denied him access to relief that otherwise would have been available.

Accordingly, Charleswell maintains that the District Court erred by finding that he was

not prejudiced as a result of being deprived of the opportunity to seek judicial review of

the 2001 Reinstatement. In our earlier opinion, we instructed that, on the question of

prejudice, “the District Court will have to determine whether there is a reasonable

probability that Charleswell would have obtained relief had he not been denied the

opportunity for direct judicial review of his reinstatement order.” Charleswell, 456 F.3d


       2
         We also reject Charleswell’s argument that “[t]he district court’s opinion in this
matter is based on an incorrect conclusion of law and fact made by the Third Circuit
Court of Appeals in its August 2006 memorandum opinion.” This contention lacks merit,
and furthermore, Charleswell’s current appeal of the District Court’s January 2008 order
is not the proper vehicle by which to challenge this Court’s precedential opinion from
August 2006. We already decided that Charleswell could not meet the requirements for
collaterally attacking the 1991 Deportation, and we will not reevaluate that decision now.

                                             6
at 362. Because Charleswell’s prejudice argument was contingent on his argument that

§ 241(a)(5) had a retroactive effect, we noted that the Supreme Court’s decision in

Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006), significantly restricted the grounds

for claiming that § 241(a)(5) is impermissibly retroactive as applied to aliens who

reentered the United States prior to IIRIRA’s effective date. Charleswell, 456 F.3d at 362

n.19 (explaining that “the mere fact that § 241(a)(5) deprives aliens who reentered before

IIRIRA’s effective date of certain forms of relief to which they were initially eligible is

no longer a basis for a finding of impermissible retroactivity”).

       Following from the Supreme Court’s decision in Fernandez-Vargas, the District

Court noted that there remains open only a narrow avenue for aliens to argue that

§ 241(a)(5) was impermissibly retroactive as applied to them, which requires

demonstrating that they either availed themselves of the relief initially available to them

under the previous statute but which is barred by § 241(a)(5) or that they took some action

that enhanced the significance of this relief to them prior to IIRIRA’s effective date, and

therefore base their claims on vested rights. However, the District Court found that

Charleswell failed to establish that he availed himself of such relief or took such action to

increase the significance of this relief to him, or that he was even eligible for such relief,

and therefore § 241(a)(5) did not have an impermissible retroactive effect as applied to

him for reasons similar to those stated in Fernandez-Vargas. See 548 U.S. at 44 n.10. As

the District Court reasoned: “Absent evidence that Charleswell made applications for the



                                               7
relief denied to him by § 241(a)(5) prior to its effective date, the court cannot conclude

that he falls under the narrow exception carved out in Fernandez-Vargas.” (App. 32.)

       We agree with the District Court that Charleswell failed to demonstrate that he

took steps prior to the effective date of IIRIRA to cause his “rights” to relief under the

prior reinstatement provision to vest, and therefore he did not establish that the

application of § 241(a)(5) to him was impermissibly retroactive. We reiterate the District

Court’s conclusion: “Having failed to establish impermissible retroactivity, Charleswell

cannot show prejudice. There is no reasonable probability that Charleswell would have

obtained relief had he been granted an opportunity to argue that the new reinstatement

provision, § 241(a)(5), was impermissibly retroactive as applied to him.” (App. 35.)

Consequently, because Charleswell was unable to demonstrate prejudice, there was no

fundamental unfairness to the entry of the 2001 Reinstatement, and Charleswell’s attempt

to collaterally attack this order was properly rejected. We agree with the District Court’s

analysis and find no error in its decision.

                                              IV.

       For the foregoing reasons, we will affirm the order of the District Court.




                                              8
