U.S. v. Wilson

• Decision Date: 16 January 2003
• Docket Number: No. 02-4202.,02-4202.
• Citation: 316 F.3d 506
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fernando Frederick WILSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

316 F.3d 506

UNITED STATES of America, Plaintiff-Appellee, v. Fernando Frederick WILSON, Defendant-Appellant.

No. 02-4202.

United States Court of Appeals, Fourth Circuit.

Argued October 31, 2002.

Decided January 16, 2003.

ARGUED: Joseph Barry McCracken, Cook & McCracken, Norfolk, Virginia, for Appellant. William Joseph Howard, Assistant United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Paul J. McNulty, United States Attorney, Stephen W. Haynie, Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Before WILKINSON, Chief Judge, and LUTTIG and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge LUTTIG wrote the opinion, in which Chief Judge WILKINSON joined. Judge DIANA GRIBBON MOTZ wrote an opinion concurring in the judgment.

OPINION

LUTTIG, Circuit Judge.

Fernando Frederick Wilson appeals his conviction under 8 U.S.C. §§ 1326(a) and (b)(2) for unlawful reentry of a deported alien. On appeal, he asserts that the district court erred by failing to grant his motion to dismiss. Wilson moved to dismiss on the ground that a defect in his original deportation proceedings, specifically the failure of the Board of Immigration Appeals ("BIA") to consider his application for waiver of deportation, rendered the deportation order invalid and thus not a proper basis on which to mount a section 1326 prosecution. He also challenges his sentence enhancement under United States Sentencing Guideline ("U.S.S.G.") § 2L1.2(b)(1)(C), which provides for an enhancement when an alien was previously deported after conviction for an "aggravated felony." Wilson argues that his state conviction for possession of cocaine does not constitute an aggravated felony because it does not qualify as a "drug trafficking crime." We conclude that Wilson's collateral attack is itself defective and, further, that the sentence enhancement was proper. Accordingly, we affirm.

I.

The undisputed facts are as follows. Wilson, a native and citizen of Panama, entered the United States without immigration inspection in early 1977 and promptly joined the United States Marine Corps. In 1982, his immigration status was adjusted to that of a lawful permanent resident. On September 3, 1986, while still serving in the military, Wilson was indicted in Virginia for possession with intent to distribute cocaine. He pled guilty to the lesser included offense of felony possession of cocaine. Two years later, Wilson tested positive for drugs and was given a bad conduct discharge from the Marine Corps.

On November 22, 1994, the Immigration and Naturalization Service ("INS") ordered Wilson to show cause why it should not deport him for having been convicted of a drug offense. At a hearing before an immigration judge ("IJ"), Wilson conceded his deportability but, as a lawful permanent resident, requested that the IJ grant him a waiver of deportation pursuant to section 212(c) of the Immigration and Naturalization Act ("INA"). See 8 U.S.C. § 1182(c) (1994 & Supp). Section 212(c) granted the Attorney General broad discretion to admit aliens who would otherwise be excludable, and had been interpreted by the BIA as authorizing any permanent resident alien with seven consecutive years of lawful domicile, such as Wilson, to apply for a discretionary waiver of deportation.

Although charged prior to their enactment, Wilson's case came before the IJ following enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), enacted on April 24, 1996, 110 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), enacted on September 30, 1996, 110 Stat. 3009-546, which together comprehensively amended the INA, 66 Stat. 163, as amended 8 U.S.C. § 1101 et seq. Of particular relevance to this appeal, AEDPA section 440(d) amended INA section 212(c) to preclude section 212(c) discretionary relief for aliens convicted of certain enumerated criminal offenses, including drug offenses. The Attorney General subsequently interpreted the provisions of AEDPA and IIRIRA as applying retroactively. See In re Soriano, Interim Decision 3289, 1996 WL 426888 (Op. Att'y Gen. June 27, 1996).

However, the matter was still unsettled when the IJ adjudicated Wilson's case. On July 19, 1996, the IJ found Wilson deportable. As to Wilson's section 212(c) waiver application, the IJ chose to apply section 212(c) as the law stood when Wilson was charged in 1994, and, accordingly, considered the merits of Wilson's section 212(c) application. The IJ denied Wilson's section 212(c) application, ruling that the unfavorable equities outweighed the favorable equities, and ordered that Wilson be deported to Panama. J.A. 95-96.

Wilson appealed the section 212(c) denial to the BIA. The BIA sustained the order of deportation, relying on the Attorney General's opinion that AEDPA and IIRIRA applied retroactively to bar section 212(c) relief. As a result, the BIA did not review the merits of Wilson's section 212(c) application.

Wilson was deported on July 2, 1998. He was given written warning that if he returned to the United States without permission he was subject to prosecution for unlawful reentry under 8 U.S.C. § 1326. After Wilson's deportation, the Supreme Court ruled in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), that AEDPA did not apply retroactively to bar the opportunity for section 212(c) relief for aliens who pled guilty to an offense which would have left them eligible for section 212(c) relief prior to the statute's enactment.

Sometime in 2000, Wilson reentered the United States without permission. He was arrested by the INS on July 20, 2001, and indicted for unlawful reentry in violation of 8 U.S.C. §§ 1326(a) and (b)(2). He moved to dismiss on the ground that his original deportation order was invalid because the BIA should have considered his section 212(c) application. The district court denied Wilson's motion to dismiss, reasoning that, even assuming Wilson could show a violation of his due process rights, because he would have had at most a fifty-fifty chance of receiving 212(c) relief from the BIA, he could not show actual prejudice. United States v. Wilson, No. 2:01cr162, Mem. Order at 7 (E.D.Va. Nov. 6, 2001) [hereinafter the "Order"]. Wilson was subsequently found guilty under section 1326(a) and (b)(2). At sentencing, the district court calculated Wilson's base offense level as 8 and, over Wilson's objection, enhanced his offense level to 16 on the ground that his 1986 conviction for felony possession of cocaine amounted to an aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(1)(C). The district court sentenced Wilson to 18 months' imprisonment, a special assessment of $100.00, and a 2 year period of supervised release. Wilson appealed.

II.

On appeal, Wilson reasserts his argument that his original deportation order is invalid because he was impermissibly denied the opportunity to apply for a section 212(c) waiver before the BIA. Because it is defective, Wilson contends, that order cannot serve as the basis for a conviction under section 1326.

Under 8 U.S.C. § 1326(d), an alien may collaterally attack the validity of his deportation order when prosecuted for illegal reentry under section 1326(a). However, section 1326(d) contains three conditions that a defendant must satisfy before he will be allowed to mount a collateral attack. The alien must demonstrate 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.

8 U.S.C. § 1326(d). These requirements are listed in the conjunctive, so a defendant must satisfy all three in order to prevail. See United States v. Fernandez-Antonia, 278 F.3d 150, 157 (2d Cir.2002). The government concedes that Wilson exhausted his administrative remedies, but contends that he can show neither of the other two requirements.

This court reviews Wilson's challenge to his conviction de novo. See United States v. Hernandez-Avalos, 251 F.3d 505, 507 (5th Cir.2001). For the reasons discussed below, we conclude that Wilson's collateral attack must fail.

A.

Wilson's collateral attack fails because he cannot show that a defect in the underlying deportation order rendered it fundamentally unfair. See 8 U.S.C. § 1326(d)(3). In order to establish fundamental unfairness, a defendant must show that (1) his due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects. See, e.g., United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir.1998); United States v. Encarnacion-Galvez, 964 F.2d 402, 407 (5th Cir.1992).

While the district court assumed that Wilson could show a due process violation, in fact he cannot. In order to succeed on a due process claim, Wilson "must first establish that he had a property or liberty interest at stake." Smith v. Ashcroft, 295 F.3d 425, 429 (4th Cir.2002). In Smith v. Ashcroft, the court considered whether there is a due process right to section 212(c) relief. Like Wilson, Smith was deported after enactment of AEDPA and IIRIRA and before the St. Cyr decision. Both the IJ and the BIA denied Smith the opportunity to apply for a section 212(c) waiver. Id. at 427. Smith's attempts to get judicial review of the BIA ruling were unavailing, and he was deported. Later, he illegally reentered the United States. When the government learned of this, it immediately moved to reinstate the deportation order. Smith brought a habeas corpus petition asserting that "his Fifth Amendment right to due process was violated by the 1998 deportation proceedings because he was not given court review of the BIA ruling that he was not entitled to discretionary relief." Id. at 428. The Smith court...