The opinion
Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
1-15-2004
USA v. Grey
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1448
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-1448
UNITED STATES OF AMERICA
v.
CALVIN GREY
a/k/a CALVIN GRAY
Calvin Grey,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 02-00276-01)
Honorable Marvin Katz, District Judge
Submitted under Third Circuit LAR 34.1(a)
January 12, 2004
BEFORE: BARRY, SMITH, and GREENBERG, Circuit Judges
(Filed: January 15, 2004)
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before this court on Calvin Grey’s (“Grey”) appeal from a
judgment of conviction and sentence entered in this criminal case on February 14, 2003.
The district court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have jurisdiction
under 28 U.S.C. § 1291.
Grey is a citizen of Jamaica who came to the United States on a visa on or about
November 1986. On December 20, 1989, Grey pleaded guilty in the Court of Common
Pleas of Philadelphia County, Pennsylvania, to statutory rape, in violation of 18 Pa.
Const. Stat. Ann. § 3122 (repealed)1 and corruption of minors, in violation of id. § 6301.
The certified records of the Court of Common Pleas reveal that on the day he pleaded
guilty, December 20, 1989, the court sentenced Grey to time he already had served, i.e.,
from November 8, 1989, to December 20, 1989, to 23 months on his statutory rape
conviction and five years probation on his corruption of minors conviction. Thus, the
sentence was indeterminate with a 23-month maximum. It appears, however, that after
Grey pleaded guilty he was released from custody and placed on probation so that his
confinement was for about six weeks.
On or about March 30, 1990, the government deported Grey to Jamaica. Grey
never since has sought or received permission from the United States Attorney General to
reenter the United States. Nevertheless, he unlawfully did reenter the country, an action
leading to his indictment on May 9, 2002, for illegally reentering the United States after
1
Section 3122 has been replaced by 18 Pa. Cons. Stat. Ann. § 3122.1 (West 2000).
2
previously being deported in violation of 8 U.S.C. §§ 1326(a), (b)(2). 2
On October 28, 2002, Grey filed a motion to dismiss the indictment in which he
challenged the validity of the 1990 deportation order, alleging that his deportation hearing
was fundamentally unfair and thus denied him due process of law. Then, on November 7,
2002, Grey filed a supplemental motion to dismiss the indictment, arguing that he was
denied effective representation at the deportation hearing because he was not advised that
he might be able to obtain relief from deportation by applying for voluntary departure
under 8 U.S.C. § 1254(e) (1982) (repealed).
On November 8, 2002, the district court denied both motions, holding that Grey
had not been prejudiced by any alleged deprivation of due process at his deportation
hearing in 1990. Grey then entered into a written plea agreement providing for him to
plead guilty of illegal entry but preserving his right to challenge the district court’s denial
of his motion to dismiss the indictment. After the court sentenced him to a 15-month
custodial term to be followed by a three-year term of supervised release he appealed.3 We
exercise plenary review over the district court’s interpretation and application of 8 U.S.C.
§ 1326. Gibbs v. Cross, 160 F.3d 962, 964 (3d Cir. 1998).
At the time of his deportation in 1990, 8 U.S.C. § 1251 (1990) provided, in
2
The government discovered Grey was here when he was arrested on narcotics charges.
3
In his appeal Grey does not challenge the district court’s determination that he was not
prejudiced by his representative’s failure to advise him that he could obtain relief by
applying for voluntary departure under 8 U.S.C. § 1254(e) (1982) (repealed). We
therefore will not address this issue.
3
relevant part, that “[a]ny alien in the United States . . . shall, upon the order of the
Attorney General, be deported who is convicted of a crime involving moral turpitude
committed within five years after entry and either sentenced to confinement or confined
therefor in a prison or corrective institution, for a year or more.”
In order to establish the elements of illegal reentry under 8 U.S.C. § 1326, the
government must prove that a deportee (1) was arrested for the underlying crime; (2) was
subsequently deported for the underlying crime; and (3) reentered the United States
without the permission of the United States Attorney General. United States v. DeLeon-
Rodriguez, 70 F.3d 764, 766 (3d Cir. 1995). The Supreme Court in United States v.
Mendoza-Lopez, 481 U.S. 828, 837-39, 107 S.Ct. 2148, 2155-56 (1987), held that aliens
may collaterally challenge an underlying deportation proceeding in a criminal prosecution
for illegal reentry. In reaching this result the Court explained that if it allowed a prior
deportation to establish conclusively an element of the offense of illegal reentry, in some
instances there would be no meaningful judicial review of deportation proceedings that
violated an alien’s right to due process of law.
The parties agree that in order to determine whether Grey successfully can
challenge his underlying deportation order he must satisfy the requirements set forth in 8
U.S.C. § 1326(d), which codified the Supreme Court’s holding in Mendoza-Lopez. That
section provides:
(d) Limitation on collateral attack on
underlying deportation order
4
In a criminal proceeding under this
section, an alien may not challenge the validity
of the deportation order described in subsection
(a)(1) of this section or subsection (b) of this
section unless the alien demonstrates that-
(1) the alien exhausted any administrative
remedies that may have been available to
seek relief against the order;
(2) the deportation proceedings at which the
order was issued improperly deprived the
alien of the opportunity for judicial
review; and
(3) the entry of the order was fundamentally
unfair.
In his brief, Grey argues that his deportation hearing was deficient in several
respects. He maintains that the immigration judge failed to comply with applicable
regulations that the Attorney General had prescribed governing deportation hearings, the
individual who represented him at the hearing failed to provide effective representation,
and he improperly was deprived of an opportunity for judicial review of the deportation
order. Nevertheless, even assuming that Grey is correct in all three contentions, he has
failed to satisfy the requirement of 8 U.S.C. § 1326(d)(3), i.e., by demonstrating that the
entry of the 1990 deportation order was fundamentally unfair.
As stated above, the provision in effect at the time of Grey’s deportation hearing
in 1990 provided for the deportation of any alien “who is convicted of a crime involving
moral turpitude committed within five years after entry and either sentenced to
confinement or confined therefor in a prison or corrective institution, for a year or more.”
8 U.S.C. § 1251 (1990). Grey does not argue that his convictions for statutory rape and
5
corruption of minors do not qualify as crimes involving “moral turpitude,” and he does
not deny that these crimes were committed within five years after his entry into the United
States.4 Grey does maintain, however, that the entry of the 1990 deportation order was
fundamentally unfair because he was not “sentenced to confinement or confined . . . for a
year or more.” 8 U.S.C. § 1251 (1990).
Grey was sentenced to time already served, i.e., from November 8, 1989, to
December 20, 1989, to 23 months on his statutory rape conviction. Inasmuch as he
actually was incarcerated for only six weeks, Grey contends that he does not satisfy the
“year or more” requirement of section 1251. We previously have rejected a parallel
argument.
In Bovkun v. Ashcroft, 283 F.3d 166, 171 (3d Cir. 2002), we held that in
determining whether the term of imprisonment actually imposed when a sentence
specifies a minimum and a maximum sentence satisfies the one-year requirement we
should look to the maximum sentence imposed. In this case the state court sentenced
Grey to a maximum 23-month term which clearly qualifies as a year or more. Grey
attempts to distinguish Bovkun by arguing that inasmuch as his maximum term of
incarceration was less than two years, parole authority was vested with the sentencing
court rather than the Board of Parole. It is true that when an individual is sentenced to a
4
Three other courts of appeals have held that statutory rape qualifies as a crime of
moral turpitude. See Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir. 1994); Castle
v. INS, 541 F.2d 1064, 1066 (4th Cir. 1976); Marciano v. INS, 450 F.2d 1022, 1024 (8th
Cir. 1971). We agree with these courts.
6
term of less than two years in Pennsylvania, the sentencing court has authority to grant
parole without supervision by the Board of Parole and, indeed, that apparently was the
situation in Bovkun.5 Pa. Stat. Ann. tit. 61, § 331.26 (West 1999). But we already have
held that it does not matter whether the parole board or the sentencing court has
jurisdiction to grant parole for purposes of a federal court determining the length of the
sentence imposed upon an alien. United States v. Frias, 338 F.3d 206, 211 n.1 (3d Cir.
2003).
Therefore, even if the immigration judge erred in failing to inform Grey of the
one-year period of incarceration requirement for deportation in 8 U.S.C. § 1251 (1990)
and Grey’s representative was remiss in failing to raise this issue in the immigration
proceeding, Grey did not suffer any prejudice. Moreover, Grey was not prejudiced by
being deprived of his appellate rights in the deportation proceedings, if such be the case,
as an appeal would not have been successful. In short, inasmuch as Grey was convicted
on his plea of guilty in the state court of the commission of a crime of moral turpitude and
sentenced to confinement for a year or more, his deportation was entirely proper and in no
way was it “fundamentally unfair.” 8 U.S.C. § 1326(d)(3).
For the foregoing reasons, we will affirm the judgment of conviction and
sentence of the district court entered February 14, 2003.
5
We note that the cases we have examined reflect a practice of the Pennsylvania state
courts to impose 23-month maximum sentences, thereby retaining parole authority.
7
TO THE CLERK:
Please file the foregoing not precedential opinion.
/s/ Morton I. Greenberg
Circuit Judge
8