APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. No. 01-cr-00007) District Judge: The Honorable Gary L. Lancaster
Before: Becker, Chief Judge, Nygaard and Ambro,
The opinion of the court was delivered by: Nygaard, Circuit Judge
In this case, we address whether it is significant in a prosecution under the Immigration and Nationality Act, 8 U.S.C. § 1326, that an alien is incarcerated when "found" in the United States. We join several other Courts of Appeal in holding that a violation of § 1326 requires only that an alien return illegally to the United States, and be subsequently discovered here.
Appellant Clive A. Dixon entered the United States in 1988, and remained beyond the authorized 29-day period. In 1991, Dixon was arrested for a drug trafficking violation in Allegheny County, Pennsylvania, and the government seized his passport. The INS then issued Dixon an Order to Show Cause and Notice of Hearing, notifying him that he was subject to deportation under § 241(a)(1)(B) of the Act. An immigration judge issued an oral decision granting Dixon voluntary departure status until April 25, 1992, with an alternate order of deportation to Jamaica. In keeping with customary practice, the oral decision afforded Dixon six months to voluntarily depart the United States, after which time he would be subject to involuntary deportation by the INS.
The INS appealed to the Board of Immigration Appeals, challenging the grant of voluntary departure status. Because this appeal acted as an automatic stay, Dixon was not subject to deportation throughout 1992.
In 1993, Dixon was convicted of possessing cocaine with intent to distribute, and sentenced to three to six years of imprisonment. The INS withdrew its appeal, and the BIA ordered the record returned to the immigration judge. The INS issued a Warrant of Removal/Deportation on December 14, 1994, which stated that Dixon was subject to removal/deportation. In accordance with custom and practice, the INS had no intention of executing the Warrant until six months after the BIA dismissed the appeal. Dixon began serving a three-year prison sentence for his drug trafficking conviction on January 24, 1995.
Three years later, Dixon was paroled, and immediately taken into custody by the INS. Pursuant to the 1994 Warrant, the INS deported Dixon from the United States on March 10, 1998.
Dixon then illegally reentered the United States. On December 6, 2000, Dixon was arrested for a traffic violation by local police in Wilkinsburg, Pennsylvania. Two days later, the Pennsylvania State Police telephoned the INS to inform the agency that Dixon, who had previously been deported, had reentered the country and had been arrested. According to the United States Department of Justice INS "Work Sheet for Oral Report" form dated 12/06/00, the State Police informed the INS that Dixon was being housed at the Allegheny County Jail, and would be transferred to Western Penitentiary, to be held on the parole violation. At the bottom of this Report, there is a handwritten note: "How individual came to INS attention." No one by the name of Clive Dixon had received permission by the Attorney General to re-enter the United States.
Dixon was charged with illegal re-entry into the United States in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2): "re-entry of a removed alien after being convicted of an aggravated felony." He filed a motion to dismiss the indictment, claiming that the government must prove that at the time the INS found him, his presence in the United States was voluntary, and also a motion in limine to preclude the government from introducing evidence of prior deportation. After the District Court denied Dixon relief ...