*1 to the of loss in this findings as amount
case.
AFFIRMED. America,
UNITED STATES оf Plaintiff-Appellee, WILSON, Frederick Fernando Defendant-Appellant.
No. 02-4202. Appeals, United States Court Fourth Circuit. Argued Oct. 2002. Decided Jan. *2 McCracken, Joseph Barry
ARGUED: McCracken, Norfolk, Virginia, for Cook & Howard, Joseph Assis- Appellant. William Alexandria, Attorney, tant United States BRIEF: Paul Virginia, Appellee. ON Attorney, McNulty, J. United States Ste- Haynie, W. Assistant United States phen Norfolk, Appellee. Attorney, Virginia, WILKINSON, Judge, and Before Chief MOTZ, Judges. LUTTIG and Circuit Judge by published opinion. Affirmed opinion, wrote the which Chief LUTTIG joined. Judge Judge WILKINSON wrote DIANA GRIBBON MOTZ judgment. opinion concurring
OPINION
LUTTIG, Judge. Circuit his appeals Fernando Frederick Wilson 1326(a) §§ conviction under 8 U.S.C. (b)(2) reentry deported for unlawful he asserts that the dis- appeal, alien. On his by failing grant erred trict court moved to dis- to dismiss. Wilson motion a defect ground on the miss proceedings, specifi- (1994 cally Immigra- failure of the Board of Supp). & Sec- (“BIA”) Appeals appli- tion to consider his granted Attorney General deportation, cation for waiver of rendered broad discretion to admit aliens who order invalid and thus excludable, would otherwise and had *3 on which to mount a section proper basis interpreted by been the BIA as authoriz- prosecution. He his challenges also ing any permanent resident alien with sentence enhancement under United domicile, years seven сonsecutive of lawful (“U.S.S.G.”) Sentencing States Guideline Wilson, such as for a apply discretion- 2L1.2(b)(l)(C), provides which an en- for ary deportation. waiver of previously hancement when alien was Although prior to charged their enact deported after for an “aggravat- conviction ment, Wilson’s case came before the IJ felony.” argues ed Wilson his state following enactment of the Anti-Terrorism possession conviction for of cocaine' does Penalty and Effective Death Act of 1996 an aggravated felony not constitute be- (“AEDPA”), 24, 1996, April enacted on it qualify “drug cause does not as a traf- 1214, Stat. thе Illegal Immigration ficking crime.” We conclude that Wilson’s Immigrant Reform and Responsibility Act and, collateral is itself defective fur- (“IIRIRA”), September enacted on ther, that the sentence enhancement was 30, 1996, 3009-546, togeth 110 Stat. which proper. Accordingly, we affirm. INA,
er comprehensively amended the I. Stat. as amended 8 U.S.C. 1101 et seq. particular Of relevance to ap this undisputed The facts as follows. 440(d) peal, AEDPA section INA amended Wilson, Panama, a native and citizen of 212(c) 212(c) section preclude section entered United States without immi- gration discretionary relief for inspection early 1977 and aliens convicted of promptly joined offenses, the United States Marine certain enumerated criminal in Corps. immigration his status cluding drug Attorney offenses. The Gen adjusted was to that of a permanent lawful eral subsequently interpreted provi 3, 1986, September resident. On while sions AEDPA and IIRIRA as applying still serving military, Wilson was Soriano, retroactively. See In re Interim in Virginia indicted for possession with Decision 1996 WL (Op. Att’y intent to distribute cocaine. pled He 27, 1996). Gen. June guilty to the lesser included offense of However, the matter was still unsettled felony possession years of cocaine. Two adjudicated when the IJ Wilson’s case. later, positive drugs Wilson tested for 19, 1996, July On the IJ found Wilson given was a bad discharge conduct from 212(c) deportable. As to Wilson’s section the Marine Corps. application, waiver apply IJ chose to 22, 1994, On November the Immigra- 212(c) the law stood when Wil- (“INS”) tion and Naturalization Service 1994, and, son charged was accordingly, ordered Wilson to why show cause it considered the merits of Wilson’s section deport should not him having been 212(c) application. The IJ denied Wilson’s of a drug convicted offense. At a hearing 212(c) application, ruling (“IJ”), immigration before an judge Wil- equities outweighed unfavorable the favor- but, son conceded deportability his able equities, and ordered that Wilson be resident, permanent lawful requested that deported to Panama. J.A. 95-96. grant him a IJ waiver of 212(c) pursuant appealed to section Wilson the section Immigra- deni- (“INA”). tion and Naturalization Act al to the BIA. BIA The sustained the im- Wilson to 18 months’ on the Attor- court sentenced relying deportation, order of AEDPA and opinion special assessment ney prisonment, General’s retroactively to bar sec- $100.00, applied year period supervised IIRIRA and a result, the BIA did relief. As a appealed. release. Wilson the merits of Wilson’s section not review
212(c) apрlication. II. July on deported was Wilson argu- appeal, On Wilson reasserts warning that if he He was written given ment that his order is per- without returned to the United States impermissibly invalid because he was de- subject prosecution mission he *4 apply nied the to for a section opportunity § 1326. reentry under 8 U.S.C. unlawful 212(c) before the it waiver BIA. Because deportation, Supreme the
After Wilson’s defective, contends, can- Wilson that order Cyr, in INS v. St. 533 U.S. Court ruled for a conviction not serve as the basis 2271, 289, 347 150 L.Ed.2d S.Ct. under section 1326. (2001), apply AEDPA retroac- that did not for section tively opportunity to bar the 1326(d), Under 8 an alien U.S.C. 212(c) pled guilty aliens who to relief for may collaterally validity attack the would have left them an offense which deportation prosecuted order when for ille 212(c) prior relief to the eligible for section 1326(a). under section gal reentry Howev enactment. statute’s 1326(d) er, three contains condi 2000, the reentered Sometime Wilson satisfy tions that a defendant must before He permission. without United States will a collateral he be allowed to mount 20, 2001, by July the on was arrested INS that: attack. The alien must demonstrate reentry for unlawful viola and indicted (1) alien the exhausted administra- (b)(2). 1326(a) §§ and He tion 8 U.S.C. may remedies that have been avail- tive ground the that his moved to on dismiss order; the against able to seek relief order was invalid be (2) proceedings the which deportation BIA considered his cause the should have de- improperly the order was issued 212(c) The application. district prived opportunity the alien of the dismiss, court denied Wilson’s motion to review; and that, assuming reasoning even Wilson process could show a violation of his due (3) funda- entry of the order was would have had at most rights, because he mentally unfair. receiving relief fifty-fifty a chance of 1326(d). requirements 8 U.S.C. These BIA, he could not show actual from the conjunctive, listed in thе so defen Wilson, v. No. prejudice. United States all three in order to satisfy dant must (E.D.Va. 2:01cr162, Nov. Mem. at 7 Order prevail. United States v. Fernandez See 2001) 6, ”]. the “Order Wilson [hereinafter (2d Cir.2002). -Antonia, 278 F.3d under sec subsequently guilty
was found that ex government The concedes Wilson 1326(a) (b)(2). sentencing, tion At remedies, but hausted his administrative of calculated Wilson’s base district court can neither of contends that he show and, objec fense level as 8 over Wilson’s requirements. other two tion, 16 on his offense level to enhanced chal court reviews Wilson’s This that his 1986 conviction for ground conviction de novo. See United lenge to his of cocainе amounted to felony possession Hernandez-Avalos, 251 F.3d of States aggravated felony purposes (5th Cir.2001). 2L1.2(b)(1)(C). For the reasons dis- The district U.S.S.G. below, opportunity apply cussed we conclude that Wilson’s Smith the to for a sec- waiver. Id. at Smith’s collateral attack must fail. judicial review of the BIA attempts get A. ruling unavailing, deport- and he was were Later, illegally ed. reentered Unit- Wilson’s collateral fails be government ed States. When the learned cause he cannot show that a defect in the this, immediately it moved to reinstate underlying deportation order rendered it brought order. Smith fundamentally unfair. corpus petition asserting habeas “his 1326(d)(3). order establish funda Fifth right process Amendment to due unfairness, mental a defendant must show deportation proceed- violated the 1998 (1) process rights were violat his due ings given because he was not court review underlying deportation ed defects in his the BIA ruling he was not entitled (2) proceeding, prejudice he suffered discretionary relief.” Id. at 428. The See, e.g., result of defects. Smith court denied the due chal- Zarate-Martinez, States v. 133 F.3d lenge, holding unequivocally that there is (9th Cir.1998); United States v. En protected liberty property “no interest carnacion-Galvez, 964 F.2d *5 212(c) in discretionary relief.” Id. at 430. Cir.1992). The court reached this conclusion because 212(c) While the district court assumed section does create entitle- process ment, could show a due Wilson vio completely but is rather discretion- lation, in ary fact he cannot. In order to suc in nature. Id. at 429-30. claim, process ceed on a due Wilson “must claim that original deporta- Wilson’s his property first establish that he had a or tion were un- proceedings fundamentally
liberty
interest
stake.” Smith v. Ash
fair
effectively
is
the same as that ad-
(4th Cir.2002).
croft, 295 F.3d
In
vanced
petitioner
habeas
Smith.
Ashcroft,
Smith
the court considered And,
Smith,
even if Wilson was
whether there
a
process right
is
due
BIA
entitled to have the
consider his sec-
212(c)
Wilson,
relief. Like
212(c)
Smith
he
application,
cannot show that
deported
was
after
AEDPA
enactment of
the failure of the BIA to do so denied him
and IIRIRA and
Cyr
before the St.
deci
process
due
process
because he had no due
212(c)
sion. Both the IJ and the BIA
right
denied
the section
relief.1
Smith,
1. In
deportation proceedings
the court also considered Smith’s
were both funda-
regard
liberty
claim
prop-
mentally
that "without
or
unfair and resulted in a denial of
interests,
erty
process rights
judicial
1326(d)
his due
were
review. Section
codifies and
meaningful
violatеd in
separate requirements.
a lack of
re-
maintains these
See 8
Thus,
1326(d)(2)
(3).
judicial
view in a
§§
forum.” Id. at 430. Smith
ques-
argued
Mendoza-Lopez,
judicial
that United States v.
tion whether Wilson was denied
re-
481 U.S.
107 S.Ct.
B. criminal he must demonstrate ‘un usual or outstanding’ equities in order to Although claim could be eligible for a favorable exercise of dis solely on the failure denied basis of his 212(c).” cretion under section Gandaril violation, identify a due Wilson has las-Zambrana v. Immigration Board prejudice, failed to show even assuming Cir.1995). Appeals, F.3d court, a violation. In such the district that, Wilson’s conviction for speculated felony possession counsel for Wilson if Wil BIA cocaine get certainly son had been able to review of the a serious criminal 212(c) addition, IJ’s section ruling, would have act. In significant he had nega fifty-fifty having had a chance of the IJ’s equities, tive including his bad conduct dis decision overturned. J.A. 65-66. The dis charge from the Marine for a Corps posi fifty-fifty trict сourt found that a chance test, drug tive and his minimal income prejudice was not sufficient to establish “suggest[s] which that he and his family it did because not “show that but for the will be continued burdens on the tax U.S. alleged violation of BIA rights by payer the future if they remain” in the ... he would not have been deported.” United States. J.A. 30 (quotation from the at 7. Order decision of the on IJ the merits of Wilson’s short, application). district correctly
The court found recognized, IJ Wilson demonstrated prejudice. that Wilson failed to establish none of the “unusual outstanding” fa In order to demonstrate prejudice, de equities vorable that would make him like fendаnt must show “a reasonable likeli ly to receive a section waiver. Be of, hood that but for the complained errors points cause he to no evidence that would deported.” the defendant would not have been *6 arnacion-Galvez, otherwise,2 Enc indicate 964 F.2d at other than his attor 407; see also United v. ney’s optimistic States Torres- fifty-fifty projection, Wil (8th Sanchez, Cir.1995) 68 F.3d 230 son has failed to demonstrate a reasonable (“Actual prejudice in exists where defects error, likelihood that but for alleged the deportation proceedings ‘may well deported.3 would not have been have rеsulted in a deportation that would ”). III. otherwise have occurred.’ Wilson also challenges the enhance cursory
Even a
equi
review of the
pursuant
ment of his sentence
to U.S.S.G.
ties Wilson’s case
that
demonstrates
2L1.2(b)(1)(C).
§
The guideline provides
actual chance of
at
obtaining a reversal
for an 8 level enhancement
illegal
for
reen
BIA level were significantly lower than the
try
fifty-fifty figure
previously
when the defendant was
suggested by his counsel.
an alien
a
deported
“[W]hen
has
record of serious
after “a
an aggra
conviction for
Cyr,
Supreme
In St.
Court did note that
3. Our decision that Wilson has shown neither
many
sought
have
aliens
relief
prejudice
a due
violation nor
renders
percentage
appli-
and "a substantial
of their
unnecessary
it
to consider whether Wilson
granted.”
cations for
relief have been
1326(d)(2)'s requirement
has met section
of
Cyr,
St.
vated
turn,
that
states
imposition of
the district court’s
We review
because
de novo
crime” means
“drug trafficking
the sentence enhancement
the term
a
interpretation
any felony punishable
statute.
under the Con-
it entails the
(21
et
Campbell, 94 F.3d
trolled
Act
U.S.C. 801
States v.
Substances
See United
Cir.1996).
(4th
Import
125, 127
seq.), the Controlled Substances
(21
seq.),
et
Export
Act
U.S.C. 951
whether a
presented is
The issue
Enforcement
Drug
the Maritime
Law
an un
possession
state conviction
(46
seq.).
Act
et
U.S.C.App.1901
ultimately
cocaine can
quantity
known
added).
924(c)(2)
(emphasis
18 U.S.C.
felony under sec
qualify
aggravated
as an
analysis is to deter
step
The next
felony
appli
if it
under the
tion 2L1.2
is
drug
traffick
mine what the elements of
punishable
law but is
only
cable state
924(c)(2). As
ing crime are under section
Sub
misdemeanor under
Controlled
924(c)(2)
structured,
plainly
it
is
is
(CSA),
seq.
Act
801 et
stances
of two
elements.
It
comprised
separate
impression
question
This is a
of first
“any felony”
goes
and then
speaks first of
circuit. The district court concluded
this
under
separate
on to list three
statutes
felony
drugs,
if a
simple possession
felony may
punishable.
which the
law,
aggra
state
can constitute
924(c)(2)
Thus,
two elements of section
felony.
agree,
116-17. We
vated
J.A.
(1)
(2)
any felony,
punishable
thereby join the seven other circuits
(or
of the other two
under the CSA
one
the issue. See United
have addressed
statutes).
enumerated
The other circuits
Ibarra-Galindo,
v.
514
As
felony.
aggravated
anof
various
commission
way in which the
the
talking about
un-
in his
defects
alleges no other
under the CSA. Wilson
punished
offenses were
sentence,
the dis-
than five
оr
derlying
of less
conviction
(“possession
at
id.
830
See
a
with
is
judgment
defendant
trict court’s
affirmed.
of cocaine base
grams
punishable
convictions is
drug
prior
no
AFFIRMED.
only, and
year
up
for
to one
imprisonment
felony. 21 U.S.C.
not a
is
therefore
MOTZ, Circuit
GRIBBON
DIANA
844.”).
an-
purport
not
did
Garnett
judgment:
in the
concurring
Judge,
presence
whether the
question
the
of
swer
sep-
write
but
judgment,
I
in the
concur
simple pos-
for
felony conviction
a state
of
majority’s dis-
arately
clarify that
the
a
qualify, as
could
session
definitional
II. A.
not be
in
should
cussion
Section
matter,
trafficking offense be-
drug
aas
conduct
permit government
misread
pres-
felony conviction was
no such
cause
unconstitutional.
long been held
that has
never cited CSA
in that
Garnett
ent
case.
in
ago, United
years
than fifteen
More
in
802(13),
that provision,
and it is
828,
481 U.S.
Mendoza-Lopez,
v.
States
ab-
the state conviction
conjunction with
(1987),
2148,
772
95 L.Ed.2d
107 S.Ct.
Garnett,
con-
that renders Wilson’s
sent
Supreme
nine
Court Justices
of the
eight
of section
purposes
felony
duct a
a constitution
a defendant
agreed that
has
924(c)(2).5
fundamen
collaterally
a
right to
al
Thus, to
tally
deportation
unfair
order.
CONCLUSION
1999)
(West
§ 1326
8 U.S.C.A.
extent
underly-
attack on his
collateral
a
impose
...
permitted
[to]
then
“a court
for the
fails
deportation proceedings
ing
reentry
after
de
penalty for
criminal
nothing
those
that
fundamental reason
of
of
violative
regardless
how
portation,
him of
deprived
deportation proceedings
pro
deportation
the alien the
rights
of
prejudiced
otherwise
process
due
been,”
held
have
the Court
may
ceeding
His attack
attempts
deportation.
to avoid
with the
comport
“the statute does
fails be-
enhancement also
on his sentence
requirement
process.”
of due
constitutional
a
state conviction
cause we conclude
837,
(emphasis
incorrect Does, 1-50, Defendants. John unfairness, a claim of fundamental states Reporters for Freedom The Committee Howev- merit. questionable one of albeit Society Press; of of American the to demon- er, has failed because Wilson Editors; Newspaper Association Al reach we need not prejudice, strate Newsweeklies; Maryland- ternative at 510-12. claim. See ante Association; Press Ma Delaware-DC Sup Media,
ryland Amici Curiae Appеllants. port of No. 02-1326. Appeals, States Court ROSSIGNOL; Fourth Circuit. Island Pub Kenneth C. Mary’s
lishing Company, St. a/k/a 30, 2002. Argued Oct. Plaintiffs-Appellants, Today, 16, 2003. Decided Jan. Rehearing Suggestion for Rehearing and 12, 2003. En Banc Denied March VOORHAAR, Sheriff, St. J. Richard County Office; Mary’s Rich Sheriff's Attorney Fritz, for St.
ard
State’s
Mary’s County, Maryland;
Al
Daniel
offense,
process required, in
statutory
due
recognized
limits
Smith court itself
the
2. The
situation,
pretrial
review
Mendoza-Lopez
limited
analysis
light of
this
of its
it,
prior deportation order
the
was
distinguished
case
whether
specifically
before
[Mendoza-Lopez.,481
at 837-
U.S.]
involving only
deportation, from
lawful.
alien's
an
Wilson's,
involving only