Filed: May 18, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 5-18-2006 USA v. Elliot Precedential or Non-Precedential: Non-Precedential Docket No. 05-2612 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "USA v. Elliot" (2006). 2006 Decisions. Paper 1089. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1089 This decision is brought to you for free and open access by the Opinions of the United Stat
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 5-18-2006 USA v. Elliot Precedential or Non-Precedential: Non-Precedential Docket No. 05-2612 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "USA v. Elliot" (2006). 2006 Decisions. Paper 1089. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1089 This decision is brought to you for free and open access by the Opinions of the United State..
More
Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-18-2006
USA v. Elliot
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2612
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"USA v. Elliot" (2006). 2006 Decisions. Paper 1089.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1089
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 05-2612
___________
UNITED STATES OF AMERICA
vs.
TEXROY JOSEPH ELLIOT,
Appellant
___________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 03-cr-00222)
Chief District Judge: The Honorable Christopher C. Conner
__________
Submitted Under Third Circuit LAR 34.1(a)
April 25, 2006
BEFORE: SCIRICA, Chief Judge, and NYGAARD, Circuit Judge.,
and YOHN,* District Judge.
(Filed: May 18, 2006)
___________
*Honorable William H. Yohn, Jr., Senior District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Appellant, Texroy Joseph Elliot challenges his conviction and sentence for
illegally reentering the United States following his deportation. He challenges (1) the
District Court’s exclusion of evidence; (2) the sufficiency of the evidence underlying the
jury’s verdict and; (3) the District Court’s refusal to exercise its discretion to grant a him
downward departure based on alleged cultural assimilation, or in the alternative, that his
sentence is unreasonable under United States v. Booker, 543 U.S. 220 (2005).
I.
Elliot first argues that the District Court improperly excluded evidence he
presented to collaterally attack his deportation order and underlying state convictions. To
launch a successful collateral attack on a deportation order under 8 U.S.C. § 1326(d), an
alien must exhaust any administrative remedies available to seek relief from that order,
the deportation proceedings at which the order was entered must have deprived the alien
of the opportunity for judicial review, and the entry of the order must have been
fundamentally unfair. We have held that “all three [requirements] must be met before an
alien will be permitted to mount a collateral challenge to the underlying removal order.”
United States v. Torres, 383 F.3d 92, 99 (3d Cir. 2004).
First, and fatal to his appeal, the record reveals that Elliot failed to exhaust his
administrative remedies in the nearly three years between the entry of the order and his
2
deportation. From the entry of the order in 1999 to his 2001 deportation, Elliot was in the
custody of the Commonwealth of Pennsylvania and could have directed the attorney who
represented him at his deportation hearing to appeal the decision of the immigration
judge. Elliot did not do so.
Elliot also argues that the attorney who represented him at the deportation hearing
was ineffective because he failed to argue that Elliot’s earlier guilty pleas on two drug
charges were the result of ineffective assistance of counsel. His claim is without merit. It
is well settled that Elliot cannot collaterally challenge the lawfulness of the state
convictions underlying the deportation order. See Drakes v. INS, 330 F.3d 600, 601 (3d
Cir. 2003), cert. denied,
540 U.S. 1008 (2003). Elliot’s argument should have been made
on direct appeal, in a post-conviction relief petition or in a federal habeas petition on that
ground.
II.
Elliot next challenges the sufficiency of the evidence underlying his conviction for
illegal reentry even though he conceded under oath that neither sought nor received
permission before knowingly reentering the United States. Because Elliot failed to raise
this issue before the District Court, we apply a plain error analysis. See United States v.
Knobloch, 131 F.3d 366, 370 (3d Cir. 1997). We may correct an error that was not
objected to in the District Court only if it affects Elliot’s substantial rights. See
id. We
must sustain the jury’s verdict if “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United States v. Dent,
149 F.3d 180,
3
187 (3d Cir. 1998). We conclude that there was no error, much less plain error, and that
the evidence presented and considered by the jury sufficiently supported the guilty
verdict. The record reflects the following facts. Elliot was born in Jamaica and came to
the United States as a permanent resident, his status contingent upon obeying all
immigration laws. He admitted under oath that he is a citizen of Jamaica and a alien in
the United States. According to the records of the Immigration and Customs
Enforcement Agency (“ICE”), Elliot was deported in 2001 because he was convicted of
drug-related felonies in violation of the immigration laws. See 8 U.S.C. §§ 1326(b)(1)
and (b)(2). He also admitted under oath that he had been deported. He knowingly
returned to the United States and also admitted this under oath. Lastly, he neither sought
nor received permission to reenter from either the Attorney General or the Secretary of
the Department of Homeland Security. Records show that Elliot was unlawfully in the
United States at least by May 2003 when he was arrested and convicted in Pennsylvania
for marijuana possession. However, two separate searches of ICE records by ICE
headquarters produced no evidence that Elliot ever sought or received permission for
reentry, and he later admitted under oath that he did not do so. Based on this evidence,
we conclude that a rational trier of fact could have found the essential elements of the
crime of illegal reentry beyond a reasonable doubt. Consequently, the evidence presented
was more than sufficient to support the jury’s guilty verdict, and it will be sustained.
III.
4
Finally, we conclude that the District Court understood its authority to depart
downward, lawfully exercised it discretion when it denied Elliot a downward departure1
and appreciated the now-advisory nature of the United States Sentencing Guidelines, and
so lack jurisdiction to review the Court’s refusal to grant a downward departure. See
United States v. Denardi, 892 F.2d 269, 272 (3d Cir. 1989) (“To the extent this appeal
attacks the district court's exercise of discretion in refusing to reduce the sentences below
the sentencing guidelines, it will be dismissed for lack of appellate jurisdiction.”).
IV.
The Judgment of the District Court will be affirmed.
1
The District Court denied Elliot’s motion for a downward departure because of his
extensive criminal history, including convictions both preceding and following his
deportation.
5
