                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-8-2003

USA v. Dixon
Precedential or Non-Precedential: Precedential

Docket 02-1586




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Recommended Citation
"USA v. Dixon" (2003). 2003 Decisions. Paper 515.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/515


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                        PRECEDENTIAL

                                      Filed May 2, 2003

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                   No. 02-1586


          UNITED STATES OF AMERICA,
                        v.
                CLIVE A. DIXON,
                          Clive Dixon, Appellant

                   APPEAL FROM
      THE UNITED STATES DISTRICT COURT
 FOR THE WESTERN DISTRICT OF PENNSYLVANIA
               (D.C. No. 01-cr-00007)
  District Judge: The Honorable Gary L. Lancaster

            ARGUED January 22, 2003
Before: BECKER, Chief Judge, NYGAARD and AMBRO,
                  Circuit Judges.

               (Filed: May 2, 2003)
                               2


                      Karen S. Gerlach, Esq. (Argued)
                      Renee Pietropaolo
                      Office of Federal Public Defender
                      1001 Liberty Avenue
                      1450 Liberty Center
                      Pittsburgh, PA 15222
                        Counsel for Appellant
                      Bonnie R. Schlueter, Esq. (Argued)
                      Shaun E. Sweeney, Esq.
                      Office of United States Attorney
                      633 United States Post
                        Office & Courthouse
                      Pittsburgh, PA 15219
                        Counsel for Appellee


                OPINION OF THE COURT

NYGAARD, Circuit Judge.
   In this case, we address whether it is significant in a
prosecution under the Immigration and Nationality Act, 8
U.S.C. § 1326, that an alien is incarcerated when “found” in
the United States. We join several other Courts of Appeal in
holding that a violation of § 1326 requires only that an
alien return illegally to the United States, and be
subsequently discovered here.

                          I.   Facts
  Appellant Clive A. Dixon entered the United States in
1988, and remained beyond the authorized 29-day period.
In 1991, Dixon was arrested for a drug trafficking violation
in Allegheny County, Pennsylvania, and the government
seized his passport. The INS then issued Dixon an Order to
Show Cause and Notice of Hearing, notifying him that he
was subject to deportation under § 241(a)(1)(B) of the Act.
An immigration judge issued an oral decision granting
Dixon voluntary departure status until April 25, 1992, with
an alternate order of deportation to Jamaica. In keeping
with customary practice, the oral decision afforded Dixon
                             3


six months to voluntarily depart the United States, after
which time he would be subject to involuntary deportation
by the INS.
  The INS appealed to the Board of Immigration Appeals,
challenging the grant of voluntary departure status.
Because this appeal acted as an automatic stay, Dixon was
not subject to deportation throughout 1992.
  In 1993, Dixon was convicted of possessing cocaine with
intent to distribute, and sentenced to three to six years of
imprisonment. The INS withdrew its appeal, and the BIA
ordered the record returned to the immigration judge. The
INS issued a Warrant of Removal/Deportation on December
14, 1994, which stated that Dixon was subject to
removal/deportation. In accordance with custom and
practice, the INS had no intention of executing the Warrant
until six months after the BIA dismissed the appeal. Dixon
began serving a three-year prison sentence for his drug
trafficking conviction on January 24, 1995.
  Three years later, Dixon was paroled, and immediately
taken into custody by the INS. Pursuant to the 1994
Warrant, the INS deported Dixon from the United States on
March 10, 1998.
   Dixon then illegally reentered the United States. On
December 6, 2000, Dixon was arrested for a traffic violation
by local police in Wilkinsburg, Pennsylvania. Two days
later, the Pennsylvania State Police telephoned the INS to
inform the agency that Dixon, who had previously been
deported, had reentered the country and had been arrested.
According to the United States Department of Justice INS
“Work Sheet for Oral Report” form dated 12/06/00, the
State Police informed the INS that Dixon was being housed
at the Allegheny County Jail, and would be transferred to
Western Penitentiary, to be held on the parole violation. At
the bottom of this Report, there is a handwritten note:
“How individual came to INS attention.” No one by the
name of Clive Dixon had received permission by the
Attorney General to reenter the United States.
  Dixon was charged with illegal reentry into the United
States in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2):
“reentry of a removed alien after being convicted of an
                               4


aggravated felony.” He filed a motion to dismiss the
indictment, claiming that the government must prove that
at the time the INS found him, his presence in the United
States was voluntary, and also a motion in limine to
preclude the government from introducing evidence of prior
deportation. After the District Court denied Dixon relief on
both motions, he entered a conditional plea of guilty to the
charge, reserving the right to challenge the District Court’s
ruling.

                       II.   Discussion
  Under 8 U.S.C. § 1326(a), any alien who has been
deported and thereafter “enters, attempts to enter, or is at
any time found in the United States,” commits a felony.
Dixon argues that because he was “found in” the United
States while he was involuntarily incarcerated, he lacked
the requisite intent to violate § 1326. This creative
argument is meritless.
   The precise circumstances of Dixon’s return to the United
States are neither known nor germane to our decision. It is
sufficient for the issue before us that he returned illegally.
That is not in dispute. That having been said, we join other
circuits in holding that a violation of 18 U.S.C. § 1326 only
requires an illegal return and a subsequent discovery. See
United States v. Salazar-Robles, 207 F.3d 648, 650 (9th Cir.
2000) (concluding that an alien convicted of being a
deported alien “found in” the United States was properly
prosecuted when the INS “found” him incarcerated)
(following United States v. Ortiz-Villegas, 49 F.3d 1435,
1437 (9th Cir. 1995)); United States v. Herrera-Ordones,
190 F.3d 504, 511 (7th Cir. 1999) (stating that whether an
alien was in a particular location by choice has no
relevance to the intent required to support a conviction for
being “found in” the United States); United States v. Asibor,
109 F.3d 1023, 1037 (5th Cir. 1997) (holding that a
previously deported alien who surreptitiously reenters the
country can be “found in” the United States while
incarcerated). Although the act of returning to the United
States must be voluntary, it is not relevant whether an
alien’s continued presence in the United States was
voluntary at the moment of discovery.
                                   5


   Dixon uses our decision in United States v. DiSantillo,
615 F.2d 128 (3d Cir. 1980), to weave an argument that
goes as follows: because a violation of § 1326 cannot be a
continuing offense, and because an alien cannot be found
until immigration authorities note his presence, the facts
regarding the time before Dixon was discovered are not
relevant, and he was involuntarily held when he was “found
in” the United States. There are several problems with this
line of reasoning. First, our holding in DiSantillo is more
narrow. In DiSantillo, we held that being found in the
United States is not a continuing offense when the alien
entered through a recognized port of entry, and therefore
the five-year statute of limitations begins to run when the
deported alien passed through the recognized port of entry.
We did not address involuntary incarceration. Second,
Dixon’s contention — that because he did not voluntarily
place himself in prison, he did not voluntarily commit the
act which completes the crime of being found in the United
States — defies a commonsense reading of the statute. We
conclude that although Dixon’s “argument is neat and not
without attractiveness . . . it won’t wash.” Salazar-Robles,
207 F.3d at 650.
  Here, there is nothing in the record to indicate that
Dixon’s illegal return to the United States was involuntary.1
The Government is only required to prove that Dixon had
the general intent to reenter the United States, and based
on the facts of the record, the only reasonable conclusion is
that Dixon’s return was voluntary. We therefore hold that
Dixon could be “found in” the United States for the
purposes of § 1326 while involuntarily incarcerated.
  Dixon also contends that the District Court’s application
of his prior deportation as a predicate to his illegal reentry
conviction under 8 U.S.C. § 1326 was a violation of due
process. This argument fails as well. Essentially, Dixon is
collaterally attacking his deportation order under § 1326(d).2

1. In oral argument, Dixon’s counsel held out the possibility that he may
have been drugged or kidnaped and involuntarily brought in the U.S.
That possibility is belied by his statements at sentencing.
2. Dixon does not dispute the applicability of § 1326(d) on the ground
that his challenge is to the INS’s execution of the deportation
                                  6


The District Court correctly found that he had failed to
satisfy the requirements for such a collateral attack. First,
Dixon did not exhaust his administrative remedies: he did
not file an appeal from the Oral Decision by Judge
Vinikoor. In addition, Dixon did not show that he was
deprived of the opportunity for judicial review of the
deportation proceedings.
  In sum, and for the foregoing reasons, we will affirm.

A True Copy:
        Teste:

                      Clerk of the United States Court of Appeals
                                  for the Third Circuit




order—although the INS at one point characterizes his argument in this
way—rather than to the order itself. We therefore leave for another day
the question whether the requirements of § 1326(d) must be met in order
to permit a challenge to a deportation that allegedly does not comply
with an order directing deportation.
