NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 14-3472

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UNITED STATES OF AMERICA

v.

RAYMOND PAUL FRANCIS, 

Appellant

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Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal Action No. 2-13-cr-00064-001)

District Judge: Honorable Terrence F. McVerry

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Submitted under Third Circuit LAR 34.1(a)

on April 30, 2015

Before: FISHER, HARDIMAN and ROTH, Circuit Judges

(Opinion filed January 19, 2016)

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OPINION*

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ROTH, Circuit Judge

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Raymond Paul Frances1 was convicted of unlawful reentry after deportation in 

violation of 8 U.S.C. § 1326. On appeal, he argues that (1) the District Court wrongly 

decided that he could not collaterally challenge his deportation and (2) the information 

and evidence are insufficient because the government did not allege or prove the 

existence of a deportation order. We reject these arguments and will affirm. 

I. Background 

On March 4, 1993, Frances, a British citizen, entered the United States pursuant to 

the Visa Waiver Program (VWP), which permits aliens from designated countries to seek 

admission to the United States for up to 90 days as nonimmigrant visitors without 

obtaining a visa.2 All applicants for the VWP must sign Form I-94W in which they 

waive “any rights to review . . . or to contest, other than on the basis of an application for 

asylum, any action in deportation.”3 

After Frances’s authorized stay expired, he remained illegally in the United States. 

In 1996, Frances married Bao Chau Huu Lee, a naturalized American citizen, and 

subsequently filed an application for an adjustment of status as the spouse of a United 

States citizen. While his application was pending, Interpol informed the Maryland State 

Police that Frances was wanted in the United Kingdom for drug-related offenses. INS 

issued a warrant and deported Frances on August 28, 1997. Two months later, INS 

informed Frances that his application for adjustment of status was terminated because of 

his deportation. 

 

1 The correct spelling of appellant’s name is “Frances,” not “Francis” as in the caption. 

2 8 U.S.C. § 1187(a). 

3 Form I-94W; see 8 U.S.C. § 1187(b)(2).
3

On February 21, 2013, Frances was discovered in Pennsylvania and charged with 

unlawful reentry. After a bench trial, the District Court found Frances guilty and 

sentenced him to time served and one year supervised release.

II. Discussion4

A. Frances May Not Collaterally Attack His Deportation. 

To collaterally challenge the deportation underlying a defendant’s removal as an 

attack on an illegal reentry conviction, the defendant must show that (1) he “exhausted 

any administrative remedies that may have been available to seek relief against the 

[deportation] order;” (2) “the deportation proceedings at which the order was issued 

improperly deprived the alien of the opportunity for judicial review;” and (3) “the entry 

of the order was fundamentally unfair.”5 The District Court correctly determined that 

Frances failed to meet these requirements. 

Frances has not shown that he exhausted administrative remedies because he never 

challenged the removal—whether at the time of deportation or during the more than 

fifteen years between his deportation and when he was found in the United States. Next, 

Frances has failed to show that he was improperly deprived of judicial review of his 

removal proceeding. Frances argues that the District Court erred in finding that he 

waived his right to contest his removal proceeding. We review the finding for plain 

 

4 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 

28 U.S.C. § 1291. We review the District Court’s factual findings for clear error and 

exercise plenary review over its interpretation of the law. United States v. Huet, 665 F.3d 

588, 594 (3d Cir. 2012); United States v. Charleswell, 456 F.3d 347, 351 (3d Cir. 2006).

5 8 U.S.C. § 1326(d). 
4

error, as Frances raises this argument for the first time on appeal.6 Because Frances does 

not dispute submitting a completed Form I-94W and has not presented any evidence 

challenging the validity of his waiver, the District Court did not err in concluding that 

Frances waived his right to review.

7

 The waiver covered removal proceedings during the 

pendency of his application for status adjustment.8 Finally, Frances has not demonstrated 

that his removal proceeding was fundamentally unfair, because he has not pointed to any 

error in the proceeding.

9

 INS may deport a VWP entrant without providing judicial 

review of the removal proceeding, even if the alien had applied for status adjustment.10

B. Information and Evidence Are Sufficient. 

Frances challenges the information and conviction on the ground that the 

government failed to allege and prove the existence of a deportation order. Under §

1326(a), the government must charge and prove that an alien:

(1) has been denied admission, excluded, deported, or 

removed or has departed the United States while an order of 

exclusion, deportation, or removal is outstanding, and 

thereafter 

 

6 Gov’t of Virgin Islands v. Rosa, 399 F.3d 283, 293 (3d Cir. 2005).

7 See Bradley v. Attorney Gen. of United States, 603 F.3d 235, 239 (3d Cir. 2010) (citing 

McLeod v. INS, 802 F.2d 89, 95 (3d Cir. 1986)). 

8

Id. at 242. 

9 United States v. Torres, 383 F.3d 92, 103-106 (3d Cir. 2004). 

10 Bradley, 603 F.3d at 242. 
5

(2) enters, attempts to enter, or is at any time found in, the 

United States, unless (A) prior to his reembarkation at a place 

outside the United States or his application for admission 

from foreign contiguous territory, the Attorney General has 

expressly consented to such alien’s reapplying for admission; 

or (B) with respect to an alien previously denied admission 

and removed, unless such alien shall establish that he was not 

required to obtain such advance consent under this chapter or 

any prior Act11 

The information states that Frances (1) is an alien who was deported from the 

United States in 1997; (2) knowingly and unlawfully reentered the United States and was 

found in Pennsylvania in 2013; and (3) had not applied for or received permission to 

return. Moreover, the notice of intent to deport and the warrant of deportation, along 

with the actual deportation, are sufficient to prove that an order of deportation was 

issued.12 The information sufficiently alleges that Frances violated 8 U.S.C. § 1326.

13

 

At trial, the parties stipulated that Frances had been deported in 1997, and that

when he was found in the United States in 2013, he was an alien and without permission 

to reenter. Thus, reviewing the evidence de novo, we find that it sufficiently supported 

Frances’s conviction.14 

 

11 8 U.S.C. § 1326(a).

12 See Vera v. Atty Gen., 672 F.3d 187, 192 (3d Cir.) vacated on other grounds, 693 F.3d 

416 (3d Cir. 2012) (reasoning that the documents and the agency action had the effect of 

an order). 

13 An information is sufficient if it (1) contains the elements of the offense, (2) 

sufficiently apprises the defendant of the allegations he must be prepared to meet, and (3) 

allows the defendant to plead an acquittal or conviction to prevent future prosecutions for 

the same offense. United States v. Huet, 665 F.3d 588, 595 (3d Cir. 2012).

14 We review a sufficiency of evidence claim de novo, and examine the totality of the 

evidence, both direct and circumstantial, and interpret the evidence in the light most 

favorable to the government as the verdict winner. United States v. Pavulak, 700 F.3d 

651, 668 (3d Cir. 2012). 
6

III. Conclusion

For the foregoing reasons, we will affirm the District Court’s judgment.