                                                     NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                    No. 11-3629
                                   _____________

                         UNITED STATES OF AMERICA

                                          v.

                        LUIS ANTONIO DUTTON-MYRIE,
                        ALSO KNOWN AS SAM MORRIS

                             Luis Antonio Dutton-Myrie,

                                     Appellant
                                 ________________

                  On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                        District Court No. 3-07-cr-00445-001
                  District Judge: The Honorable A. Richard Caputo

                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   May 17, 2012

                    Before: SMITH, and FISHER, Circuit Judges
                          and STEARNS, District Judge

                                (Filed: May 18, 2012)

                              _____________________

                                    OPINION
                              _____________________



 The Honorable Richard G. Stearns, United States District Judge for the United States
District Court of Massachusetts, sitting by designation.
                                          1
SMITH, Circuit Judge.

       An indictment filed in the United States District Court for the Middle District of

Pennsylvania charged Luis Antonio Dutton-Myrie, a native and citizen of Panama, with

illegally reentering the United States in violation of 8 U.S.C. §§ 1326(a) and (b)(2).

Dutton-Myrie filed a motion to dismiss the indictment, contending that the underlying

deportation order was invalid under 8 U.S.C. § 1326(d). The District Court appropriately

recognized that a motion to dismiss an indictment is “not „a permissible vehicle for

addressing the sufficiency of the government‟s evidence.‟” United States v. Bergrin, 650

F.3d 257, 265 (3d Cir. 2011) (quoting United States v. DeLaurentis, 230 F.3d 659, 660-

61 (3d Cir. 2000)). It treated Dutton-Myrie‟s submission as a motion under Federal Rule

of Criminal Procedure 12(b)(2) that it could “determine without a trial of the general

issue.” After the Court denied the motion, Dutton-Myrie entered a conditional guilty

plea, preserving his right to challenge the District Court‟s ruling that his deportation order

did not satisfy the criteria in § 1326(d). The Court sentenced Dutton-Myrie to, inter alia,

time served. This timely appeal followed.1

       Before us, Dutton-Myrie contends that the District Court erred because he

demonstrated that his deportation order was invalid under § 1326(d).            We exercise

plenary review over the District Court‟s determination. United States v. Charleswell, 456

F.3d 347, 351 (3d Cir. 2006). Under § 1326(d), an alien may avoid conviction for


1
    The District Court exercised jurisdiction under 18 U.S.C. § 3231.           We exercise
jurisdiction under 28 U.S.C. § 1291.
                                              2
unlawful reentry if he “demonstrates that (1) [he] exhausted any administrative remedies

that may have been available to seek relief against the [deportation] order; (2) the

deportation proceedings at which the order was issued improperly deprived [him] of the

opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.”

8 U.S.C. § 1326(d). The District Court determined that Dutton-Myrie satisfied the first

two criteria, but that he failed to show that the deportation order was fundamentally

unfair.

          In its analysis of § 1326(d)(3), the District Court recognized that in United States

v. Torres, 383 F.3d 92, 103 (3d Cir. 2004), we instructed that the question of fundamental

fairness presents a question of “whether the alien was denied due process.” The District

Court concluded that Dutton-Myrie had not been deprived of his right to due process in

the context of the deportation proceeding as he had “effective notice of the charges

against him and an opportunity to be heard.” In addition, the District Court properly

noted that an alien challenging the fairness of a removal proceeding must demonstrate

that he was prejudiced by the procedural defect. Charleswell, 456 F.3d at 358 (holding

explicitly “that prejudice is a necessary component under [§] 1326(d)”). Dutton-Myrie,

the Court concluded, failed to make the requisite showing of prejudice.

          Dutton-Myrie asserts that the District Court erred by concluding he could not

demonstrate prejudice as a result of the procedural errors in his removal proceeding. We

are not persuaded by his arguments. Even if Dutton-Myrie had pursued an appeal with

the Board of Immigration Appeals, that decision would not have altered the fact that

                                               3
Dutton-Myrie was removable by virtue of the fact that he had overstayed his visa. See 8

U.S.C. § 1227(a)(1)(B). Although he submits that he could have sought discretionary

relief under former § 212(c), Dutton-Myrie did not have that avenue of relief open to him

because he was not a lawful permanent resident.             See 8 U.S.C. § 1182, 1996

Amendments, Subsec. (c). Furthermore, as the District Court correctly noted, Dutton-

Myrie‟s conviction for possession with intent to deliver cocaine under Pennsylvania law

constituted an aggravated felony that also rendered him subject to removal. 8 U.S.C. §§

1101(a)(43)(B) and 1227(a)(2)(A)(iii); see also Garcia v. Attorney Gen., 462 F.3d 287,

293 (3d Cir. 2006) (concluding that a Pennsylvania conviction for possession of a

controlled substance with intent to distribute qualified as an aggravated felony).

       Accordingly, we will affirm.




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