United States v. Outram ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
9-19-2006
USA v. Outram
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3790
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"USA v. Outram" (2006). 2006 Decisions. Paper 443.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/443
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NOT PRECEDENTIAL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. 05-3790
UNITED STATES OF AMERICA
vs.
RODERICK RANDALL OUTRAM, A/K/A Sean M. Brewster
Roderick Randall Outram,
Appellant
____________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Crim No. 03-CR-00115-1 )
District Judge: Honorable Yvette Kane
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 14, 2006
Before: SLOVITER, WEIS, and GARTH, Circuit Judges.
Filed September 19, 2006
____________
OPINION
WEIS, Circuit Judge.
Defendant pleaded guilty to an unlawful re-entry into this country in
violation of 8 U.S.C. § 1326(a) and (b)(2). He was sentenced to fifty-seven months
incarceration under the Guidelines, consecutive to a state sentence he was then serving.
1
Defendant appealed and this Court affirmed the conviction and the District
Court’s decision to impose a consecutive sentence. We remanded, however, for
resentencing in light of United States v. Booker, 543 U.S. 220 (2005). United States v.
Outram, 132 F. App’x 412 (3d Cir. 2005).
On remand, the District Court held a sentencing hearing and, after
arguments by counsel, reinstated the original sentence. Having reviewed the record in
this case, we find no error and do not find the sentence unreasonable.
Outram also attempts now to collaterally attack his 1993 removal order,
which was issued in absentia, arguing that it was fundamentally unfair. Initially, we note
that Outram failed to raise this claim in his original appeal of his sentence and is
foreclosed from doing so now. See United States v. Pultrone, 241 F.3d 306, 307-08 (3d
Cir. 2001).
The challenge also fails on the merits. To prevail on a collateral attack on a
deportation order under 8 U.S.C. § 1326(d), (1) an alien must exhaust any administrative
remedies that may have been available; (2) the deportation proceedings must have
deprived the alien of the opportunity for judicial review; and (3) entry of the order must
have been fundamentally unfair. “[A]ll 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).
2
Outram has not demonstrated that the entry of the order was fundamentally
unfair. “‘[F]undamental fairness is a question of procedure.’” Id. at 103 (quoting United
States v. Lopez-Ortiz, 313 F.3d 225, 230 (5th Cir. 2002). With respect to removal
proceedings, “‘due process requires that an alien who faces [removal] be provided (1)
notice of the charges against him, (2) a hearing before an executive or administrative
tribunal, and (3) a fair opportunity to be heard.’” Id. at 104 (quoting Lopez-Ortiz, 313
F.3d at 230).
In the present case, Outram received notice of the removal proceedings and
an opportunity to be heard before an Immigration Judge. He failed, however, to appear at
this hearing. This is not a denial of due process. Further, we note that Outram does not
appear to contest the facts underlying the removal order.
Accordingly, we will affirm the Judgment of the District Court.
3