Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-7-2004

USA v. Hough
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1663




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Recommended Citation
"USA v. Hough" (2004). 2004 Decisions. Paper 614.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/614


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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 03-1663


                           UNITED STATES OF AMERICA

                                            v.

                                MARK GARY HOUGH,
                                         Appellant


                      Appeal from the United States District Court
                              for the District of New Jersey
                            (D.C. Criminal No. 02-cr-00649)
                  District Judge: Honorable Joseph A. Greenaway, Jr.


                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 15, 2004

             Before: RENDELL, STAPLETON and LAY*, Circuit Judges.

                                  (Filed: June 7, 2004 )


                              OPINION OF THE COURT


RENDELL, Circuit Judge.

      Mark Gary Hough was indicted for violating 8 U.S.C. § 1326(a) and (b)(2) in 2002




*Honorable Donald P. Lay, Senior Circuit Judge for the Eighth Circuit, sitting by
designation.
when he illegally attempted to reenter the United States after having been removed in

1998. Hough pled guilty, however, to the charge of knowingly and willfully making a

materially false statement to the INS in violation of 18 U.S.C. § 1001. The indictment

listing the initial charges was dismissed in light of Hough’s guilty plea. He was

sentenced in February of 2003 to time served, followed by two years of supervised

release. He filed a timely notice of appeal. 1

       Hough contends that his conviction must be reversed because his previous removal

order was obtained in an unconstitutional manner. He argues that his removal

proceedings were invalid because he was denied the effective assistance of counsel, and

he contends that his due process rights were thereby violated. Thus, he urges that his

prosecution for illegal reentry was improper, and that the matter should be remanded to

the agency for a new removal hearing, free of the constitutional violations that allegedly

plagued his first hearing. Unfortunately, these attacks on Hough’s underlying removal

order are to no avail, because the conviction and sentence from which he appeals was not

for illegal re-entry; rather, he appeals after pleading guilty to making a false statement to

an INS official. Hough correctly cites numerous cases supporting the proposition that a

defendant convicted of illegal reentry under 8 U.S.C. § 1326 may launch collateral attacks

on his initial removal proceedings. See, e.g., United States v. Mendoza-Lopez, 

   The District Court had jurisdiction based on 18 U.S.C. § 3231. We may review the
District Court’s final judgment of conviction pursuant to 28 U.S.C. § 1291.

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828 (1987). But, as we have stated above, Hough pled guilty to making a false statement

to the INS, not to illegal reentry. The statement involved – a negative response to a

question asking whether he had ever been removed from the United States – was false

regardless of whether Hough’s initial removal proceedings were somehow flawed.

Accordingly, the validity of his previous removal hearing is not at issue on this appeal.

       Further, even if we were to view his removal as relevant to the conviction from

which his appeal is taken, Hough knowingly and voluntarily entered a guilty plea and

admitted during the colloquy that he had lied on his I-94 Visa Waiver form. By entering

an unconditional plea based on that fact, he waived any defenses to the charge under 18

U.S.C. § 1001. See Tollett v. Henderson, 

, 267 (1973); United States v.

Panarella, 

, 689 (3d Cir. 2002). Hough has not contended that his plea was

in any way defective or that it was made involuntarily. 2 Accordingly, we will not permit

him to withdraw his admission of guilt and advance defenses to his initial charges.

       For the reasons stated above, we will AFFIRM the District Court’s Judgment of

Conviction.




  2
    Hough notes in passing that he accepted the plea in part because he wanted to be
released from jail as soon as possible. However, he does not argue that this was the
primary motivation for his decision to plead guilty, or that it rendered his plea unknowing
or involuntary. Thus, it provides no basis for setting aside his guilty plea.

                                             3