1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-17-1994

USA v. McCalla

Precedential or Non-Precedential:

Docket 93-1908

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Recommended Citation

"USA v. McCalla" (1994). 1994 Decisions. Paper 157.

http://digitalcommons.law.villanova.edu/thirdcircuit_1994/157
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 93-1908 

 ___________ 

 UNITED STATES OF AMERICA 

 vs. 

 HURBY SEPTIMUS MCCALLA 

 aka TERRANCE GEORGE BEECHAM 

 aka MICHAEL G. SMITH 

 a/k/a THOMAS HARDING 

 Hurby McCalla, 

 Appellant

 ___________ 

 Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 (D.C. Crim. No. 93-cr-00128-1) 

 ___________ 

 

Argued 

 August 11, 1994 

 Before: MANSMANN, COWEN and McKEE, Circuit Judges. 

 (Filed October 14, 1994) 

 ___________ 

Michael R. Stiles 

 United States Attorney 

Walter S. Batty 

 Assistant United States Attorney 

Eric W. Sitarchuk, Esquire (ARGUED) 

Suite 1250 

Office of United States Attorney 

615 Chestnut Street 

Philadelphia, PA 19106 

 COUNSEL FOR APPELLEE 

Steven A. Morley, Esquire (ARGUED) 

Benjamin Franklin House 

Suite 400 

834 Chestnut Street 

Philadelphia, PA 19107 

 COUNSEL FOR APPELLANT 
 ___________ 

 OPINION OF THE COURT 

 __________ 

MANSMANN, Circuit Judge. 

 A jury convicted Hurby Septimus McCalla pursuant to 8 

U.S.C. § 1326 for his unauthorized reentry into the United States 

as an alien who had previously been deported after an aggravated 

felony conviction. At the time of his deportation, McCalla was 

given a standard Form I-294 notice which warned that his reentry 

into the United States without first procuring the permission of 

the United States Attorney General would expose him to a maximum 

prison sentence of two years. The two year penalty indicated on 

the form was a misstatement of the actual statutory maximum 

penalty of up to 15 years imprisonment. The main issue we 

address is whether the government should have been precluded 

under the theory of fair warning, the rule of lenity, or the 

doctrine of entrapment from seeking a sentence in excess of two 

years and ultimately, whether the district court erred in 

sentencing McCalla to a prison term which substantially exceeded 

the two years described in the notice. 

I. 

 Hurby Septimus McCalla1 was deported on or about 

April 9, 1991. At that time, he received and signed Immigration 

and Naturalization Service Form I-294, which stated: 

 

1. McCalla has used a variety of aliases. He was 

convicted in New Jersey Superior Court on May 3, 1988, for 

possession of a controlled dangerous substance with intent to 
 Should you wish to return to the United 

States you must write [the United States 

Department of Justice, Immigration and 

Naturalization Service] or the American 

Consular Office nearest your residence abroad 

as to how to obtain permission to return 

after deportation. By law (Title 8 of United 

States Code, Section 1326) any deported 

person who within five years returns without 

permission is guilty of a felony. If 

convicted he may be punished by imprisonment 

of not more than two years and/or a fine of 

not more than $1,000.00. 

S.A. 1 (emphasis added). 

 The INS Form I-294 given McCalla had not been revised 

to reflect changes in section 1326 of Title 8, U.S.C., which had 

occurred on November 18, 1988 and November 19, 1990. The 1988 

amendment to section 1326 added a subsection (b), providing for 

enhanced penalties where the defendant has had prior felony 

convictions. A second amendment in 1990 increased the associated 

maximum fine from $1,000 to $250,000 in accordance with 18 U.S.C. 

§ 3571(b)(3). Consequently, the portions of section 1326 

(..continued) 

distribute and distribution of a controlled dangerous substance 

under the name Michael G. Smith. As a result of that conviction, 

McCalla was deported from the United States on April 9, 1991, 

under the name Terrance George Beecham. On April 15, 1992, 

McCalla was arrested in Philadelphia, Pennsylvania, under the 

name, Thomas Harding. Apparently, on June 30, 1992, McCalla was 

again arrested, this time under the name, Dennis Clark, but a 

fingerprint analysis identified him to be the same person as 

Thomas Harding. On January 21, 1993, McCalla admitted that his 

true name is Hurby Septimus McCalla. A combination of comparison 

photographs and fingerprint analyses compiled from local police 

department records and FBI records established that all of the 

above names, and other names or spellings, refer to one and the 

same Hurby Septimus McCalla. 
applicable to McCalla at the time of his deportation were as 

follows: 

 (a) Subject to subsection (b) of this 

section, any alien who -- 

 (1) has been arrested and deported 

or excluded and deported, and 

thereafter 

 (2) enters . . . or is at any time 

found in, the United States, unless 

(A) prior to his reembarkation at a 

place outside the United States 

. . . the Attorney General has 

expressly consented to such alien's 

reapplying for admission; or (B) 

with respect to an alien previously 

excluded and deported, unless such 

alien shall establish that he was 

not required to obtain such advance 

consent under this chapter or any 

prior Act, 

 

 shall be fined under Title 18, or imprisoned 

not more than 2 years, or both. 

 (b) Notwithstanding subsection (a) of this 

section, in the case of any alien described 

in such subsection -- 

 * * * 

 (2) whose deportation was 

subsequent to a conviction for 

commission of an aggravated felony, 

such alien shall be fined under 

such Title, imprisoned not more 

than 15 years, or both. 

8 U.S.C. § 1326 (as amended Nov. 18, 1988, Pub. L. 100-690, 102 

Stat. 4471; Nov. 29, 1990, Pub. L. 101-649, 104 Stat. 5059). 

 On or about April 15, 1992,2 McCalla was found in 

Philadelphia, having reentered the United States without first 

 

2. The indictment charged that McCalla was found in 

Philadelphia, Pennsylvania, on or about April 15, 1992, under 

circumstances which brought his presence in the United States to 

the attention of local police authorities. He was at a night 

club when a security guard noticed he was carrying a loaded 
applying to the Attorney General of the United States for 

admission and receiving her express consent pursuant to section 

1326. He was thus charged with a violation of section 

1326(b)(2). 

 At trial, the court precluded defense counsel from 

raising to the jury the issue of whether McCalla could be 

properly charged pursuant to 8 U.S.C. § 1326(b) in light of the 

errors contained in Form I-294. The jury returned a guilty 

verdict on the single count indictment. At sentencing, McCalla 

argued that the government was bound to the misstatements made in 

Form I-294 in seeking his sentence, and therefore that the 

government was precluded from seeking a sentence in excess of 2 

years despite the 15 year maximum imprisonment provided in 

section 1326(b)(2). Nonetheless, the court calculated McCalla's 

offense range at 100 to 125 months pursuant to the United States 

Sentencing Guidelines, and imposed a sentence of 112 months 

imprisonment with three years supervised release following 

completion of his prison sentence and a financial penalty in the 

amount of $50.00.3

(..continued) 

pistol and telephoned the police, who subsequently arrested him. 

The complaint alleged that McCalla was found in the United States 

on or about January 20, 1993. That date coincides with the date 

he was placed in the custody of the Immigration and 

Naturalization Service after completing sentences for local 

offenses. 

3. The district court had subject matter jurisdiction 

pursuant to 18 U.S.C. § 3231. This is an appeal from a final 

judgment of conviction and order of sentence pursuant to 28 

U.S.C. § 1291. 
II. 

 The issue of whether due process mandates that the 

government be limited to the maximum sentence promulgated by the 

government's own inaccurate notice of the current law is one of 

first impression in this circuit. 

 McCalla argues that due process, fundamental fairness 

and the rule of lenity militate against imposition of a prison 

sentence in excess of that which the government has clearly 

represented it could be. He further argues that the public 

policy supporting the doctrine of entrapment would preclude the 

government from receiving a "benefit" from its act of 

misrepresentation. Thus McCalla seeks to have this case remanded 

to the district court for resentencing within a two-year sentence 

limitation. 

 Our sister courts of appeals have recently rejected the 

arguments which McCalla raises before us. In United States v. 

Perez-Torres, 15 F.3d 403 (5th Cir. 1994), a case involving the 

very same act of misrepresentation on the part of INS, the Court 

of Appeals for the Fifth Circuit held: 

 Form I-294 is not a criminal statute. Hence, 

the defect [the defendant] complains of lies 

not in the underlying statute, but rather in 

a provision of a document with no relevant 

legal force. As [the defendant] concedes, 

section 1326 clearly and unambiguously 

articulated the penalties associated with a 

reentry offense. Thus, regardless of the 

inaccuracy of Form I-294, the statute under 

which [the defendant] was convicted provided 

notice adequate to satisfy the requirements 

of due process. 

Id. at 406. 
 Similarly, in reversing the decision of its district 

court, the Court of Appeals for the Ninth Circuit held in United 

States v. Sanchez-Montoya, 1994 U.S. App. LEXIS 18,742, *2 (9th 

Cir. July 26, 1994) that, 

 [N]either due process nor principles of 

equitable estoppel precludes imposing a 

prison term exceeding two years for illegal 

reentry on a defendant who had been advised 

erroneously by the INS before deportation 

that the maximum penalty for that offense was 

two years. [citing United States v. UllysesSalazar, No. 93-50144, Slip op. 6543, 6549, 

6551-52 (9th Cir. June 20, 1994)]. We also 

conclude[] that such circumstances do not 

constitute a valid basis for a downward 

departure. [Citing id. at 6553.] 

Accord United States v. Samaniego-Rodriguez, 1994 W.L. 401595 

(7th Cir. Aug. 4, 1994) (Form I-294 cannot give rise to a due 

process violation and section 1326 unquestionably satisfies all 

due process requirements); United States v. Shaw, 1994 W.L. 

244362 (7th Cir. June 7, 1994) (pre-deportation warning that 

reentry is punishable by a maximum of two years does not render 

the 46-month sentence imposed a violation of due process). 

 We agree with our sister courts of appeals. Although 

the inaccuracy in Form I-294 was regrettable, perhaps 

inexcusable, due process requires that it is the criminal statute

which must clearly set forth the activity which constitutes a 

crime and the punishment authorized for committing such a crime. 

See United States v. Batchelder, 442 U.S. 114, 121 (1979) (a 

statute which ambiguously specifies criminal conduct or the 

penalties authorized upon conviction raises a constitutional 
question). Section 1326(b)(2) clearly comports with the due 

process requirement of fair notice. 

 Similarly, the rule of lenity applies to ambiguous 

criminal statutes. Simpson v. United States, 435 U.S. 6, 14-15 

(1978) (ambiguities in either the substantive or sentencing 

provisions of criminal statutes justify application of lenity); 

United States v. Schneider, 14 F.3d 876, 879 (3d Cir. 1994) 

(lenity only applies where reasonable doubt persists concerning 

ambit of statute even after review of statutory text, structure, 

legislative history and polices). Section 1326(b)(2) is not 

ambiguous and we decline to employ the rule of lenity to override 

the indisputable terms of the criminal statute. 

 Finally, the defense of entrapment serves to protect 

against a deception on the part of the government that induces a 

criminal act by "actually implant[ing] the criminal design in the 

mind of the defendant." United States v. Russell, 411 U.S. 423, 

436 (1973). Furthermore, a claim of entrapment requires proof 

that the defendant lacked predisposition to commit the crime. 

Id. (entrapment defense requires government inducement and lack 

of predisposition); see also United States v. Wright, 921 F.2d 

42, 44 (3d Cir. 1990), cert. denied, 501 U.S. 1207 (1991). 

Neither of those elements is shown here. Form I-294 did not 

mislead McCalla as to what constituted the specific criminal act; 

nor do we regard the misstatement as to the punitive sentence 

relevant to proving McCalla's predisposition. McCalla willfully 

reentered the United States despite the government's express 
notice that such reentry would constitute a felony. Public 

policy militates against equity here.4 

III. 

 McCalla raises other claims which we find meritless. 

McCalla claims, for example, that the use of his prior aggravated 

felony conviction to enhance his punishment was in violation of 

the ex post facto clause. We hold, however, that because the 

violation of section 1326(b) occurred subsequent to the effective 

date of the statutory amendment which provided for an enhanced 

punishment, there was no ex post facto violation. The date of 

McCalla's prior criminal conduct is not relevant for purposes of 

an ex post facto analysis here. See Gryger v. Burke, 334 U.S. 

728, 732 (1948); United States v. Arzate-Nunez, 18 F.3d 730, 734 

(9th Cir. 1994) ("[f]or purposes of analyzing . . . statutes 

increasing penalties for future crimes based on past crimes, the 

relevant `offense' is the current crime, not the predicate 

crime"). 

 McCalla also asserts that evidence of the circumstances 

under which his reentry came to the attention of authorities and 

of his subsequent arrest processing was unduly prejudicial and 

improperly admitted into evidence, and hence that he is entitled 

 

4. At trial, defense counsel argued that the government 

should be estopped from proving any elements of section 

1326(b)(2) calling for a penalty in excess of two years, the 

implication being that McCalla detrimentally relied in good faith 

upon the government's misrepresentation in deciding to risk the 

commission of a felony. McCalla precluded a finding of good 

faith, however, by his willful violation of the criminal law. 
to a new trial. McCalla further contends that he was denied the 

effective assistance of counsel because defense counsel failed to 

object to the allegedly improper introduction of this evidence. 

In ruling on the motion in limine, the court held that the 

evidence was admissible to the extent that it was a foundation 

for an understanding of the sequence of events which established 

McCalla's surreptitious and voluntary presence in the United 

States. Furthermore, in light of McCalla's various aliases, the 

evidence helped to establish his identity. We hold that it was 

well within the district court's sound discretion to permit the 

evidence, and in light of the overwhelming case against McCalla, 

we do not find any evidence of prejudice or a manifest 

miscarriage of justice requisite to a finding of ineffective 

assistance of counsel raised first on direct appeal. Moreover, 

testimony concerning the basis of McCalla's prior sentence, given 

on redirect examination in response to questions asked during 

cross-examination, was invited, and admission of that evidence 

does not constitute plain error. 

 Finally, McCalla asserts that the deportation hearing 

which he was afforded in 1991 did not comport with due process or 

the statutes and regulations apropos to such hearings. He argues 

that the alleged deficiency of his deportation hearing precludes 

using his prior deportation as the basis of the section 1326 

charge against him. Specifically, McCalla asserts that the use 

of a telephonic hearing directly contravened the mandate of 8 

U.S.C. § 1252(b), which governs the determination of 

deportability. McCalla further alleges that the deportation 
order was predicated upon a record of conviction which the 

immigration judge never saw, instead relying solely on McCalla's 

admission and the representations of the prosecutor that such a 

record exists and as to its contents.5 

 We acknowledge that a severely deficient deportation 

proceeding which effectively deprives the defendant of his right 

of direct appeal may preclude use of that deportation as a 

predicate to prosecution under section 1326. See, e.g., United 

States v. Mendoza-Lopez, 481 U.S. 828, 838 (1984) ("where the 

defects in an administrative proceeding foreclose judicial review 

of that proceeding, an alternative means of obtaining judicial 

review must be made available before the administrative order may 

be used to establish conclusively an element of a criminal 

offense"). McCalla has failed to demonstrate, however, that he 

was effectively deprived of his right of direct appeal and we 

will not dismiss the section 1326 charge against him. 

 

5. We note here that in granting the government's motion 

to preclude evidence of the alleged invalidity of McCalla's 

deportation, the court held that McCalla had waived his right to 

collaterally attack the validity of his deportation proceeding 

because he had not raised any due process challenge to the 

indictment prior to trial in accordance with the time provisions 

set forth in Federal Rule of Criminal Procedure 12 and Local Rule 

of Criminal Procedure 11. See Memorandum Order of the District 

Court, Criminal Action No. 93-128 (May 11, 1993, at p. 9, S.A. 

151). Nevertheless, the court heard the merits of that claim and 

ruled that McCalla had failed to meet his burden to establish a 

due process violation. S.A. 151-58. 
IV. 

 For the foregoing reasons, the judgment of sentence 

entered on September 17, 1993, against Hurby Septimus McCalla in 

the United States District Court for the Eastern District of 

Pennsylvania will be affirmed. 

 

_________________________ 

MCKEE, Circuit Judge, dissenting. 

 While I agree with the majority in all other 

respects, I respectfully dissent from Part II of the majority 

opinion. The majority reasons that, despite the fact that the 

government disseminated the inaccurate maximum penalty 

information printed on form I-294 to McCalla (and countless other 

deportees), McCalla's sentence in excess of two years does not 

offend due process because the relevant statute gave notice to 

all the world of its contents. Notice of the conduct 

that a statute proscribes and the penalty prescribed for such 

conduct are fundamental to due process of law. See McBoyle v. 

United States, 283 U.S. 25, 27 (1931). The statement on form I294, did not give McCalla accurate information and fair warning 

regarding "what the law intends to do if a certain line is 

passed." Id. Accordingly, traditional notions of fairness 

inherent in the requirement of due process should preclude us 
from allowing McCalla to be sentenced to more than the two years 

that the government represented to be the maximum sentence. 

 Although the government was justified in its 

efforts to incarcerate McCalla based upon his illegal return to 

this country, our holding today does not properly consider the 

totality of the circumstances of McCalla's deportation and the 

context in which he received the "information" in form I-294. 

The record before us establishes that once it is determined that 

an individual will be deported, the government makes flight 

arrangements for the deportee. At the appointed time, the 

deportee is escorted to the airport in handcuffs by two 

deportation officers who fingerprint the deportee and are 

responsible for making sure that the deportee signs the warrant 

of deportation. Prior to departure the handcuffs are removed, 

and the warrant of deportation is read to the deportee and then 

given to him or her along with a copy of form I-294. He or she 

is then put on the airplane, and the appropriate travel 

documentation is given to an airline attendant. 

 In this coercive atmosphere the government clearly 

intends for the deportee to read and rely upon the information 

and warnings in each of the documents that are presented to him 

or her. Indeed, McCalla was given form I-294 so that he would 

take note of, and heed, the warnings it contained. We now allow 

the government to successfully assert that the contents of the 

form are irrelevant to McCalla's notice. 
 We charge the defendant with knowledge because of 

the unambiguous statute, yet we do not charge the government 

agency responsible for enforcing this country's immigration laws 

with the same notice, and we excuse the error in this form. It 

stands reality on its head to suggest that the unambiguous 

statute buried within one particular volume of the United States 

Code sitting somewhere upon the shelves in far off law libraries 

somehow reaches out to McCalla in these circumstances and trumps 

the "information" in form I-294. 

 I fail to understand the logic or fairness of a 

position which charges this defendant with knowledge based upon 

the publication of a statute yet fails to attribute that same 

knowledge to duly appointed agents of the Attorney General of the 

United States, or the agency of the government responsible for 

enforcing immigration laws. All parties seem to agree that the 

INS did not intentionally mislead McCalla because the INS did not 

realize that the information contained in form I-294 was wrong 

when agents handed it to McCalla. Yet, this defendant who is not 

responsible for enforcing the law, is charged with notice of the 

change in the law. 

 Courts have traditionally held that one must know 

the consequences of an action before one can be held criminally 

accountable for the action. Thus, due process and fair notice 

dictate that a defendant cannot be punished when the statute does 

not clearly define the criminal conduct. McBoyle, 283 U.S. at 
27. In addition, no penalty can be imposed if a statute does not 

prescribe punishment for certain conduct. United States v. Evans, 

333 U.S. 483, 495 (1948). Accordingly, under the circumstances 

of this case, it is reasonable to limit the government to the 

sentence that it has represented to be the maximum penalty. I 

believe fundamental fairness requires nothing less. 

 The rationale asserted by the government and 

adopted by the majority elevates the maxim that "ignorance of the 

law is no excuse" to a mantra which has hindered realistic 

analysis here. The Supreme Court recently had occasion to limit 

the use of this "age old maxim" in Ratzlaf v. United States, 

U.S. , 114 S. Ct. 655 (1994). Ratzlaf, though clearly 

distinguishable, teaches that the existence of a statute cannot 

serve to give notice of its contents for all purposes even when a 

defendant engages in conduct known to be improper. Id. at 663. 

McCalla was aware of the contents of 8 U.S.C. § 1326(b)(2) just 

as the defendant in Ratzlaf was aware of the contents of the 

statutes at issue in that case. Both defendants knew that they 

were engaging in conduct that was improper. The Court in 

Ratzlaf, however, held that the defendant could not be charged 

with knowledge that his conduct was a crime. See id. at 658. 

Just as the defendant in Ratzlaf could not be charged with 

knowledge of the criminal nature of his activity, the 

circumstances surrounding McCalla's deportation should preclude 

charging him with knowledge of 8 U.S.C. § 1326. 
 Thus, absent controlling precedent to the 

contrary, I believe that fundamental fairness limits the maximum 

penalty to which this defendant should be subjected to that 

amount of incarceration which the government told him he could 

expect if he were to return illegally. Therefore, I most 

respectfully dissent.