United States of America v. Mark Gary Hough

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-1663
UNITED STATES OF AMERICA
v.
MARK GARY HOUGH,
Appellant
Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 02-cr-00649)
District Judge: Honorable Joseph A. Greenaway, Jr.
Submitted Under Third Circuit LAR 34.1(a)
April 15, 2004
Before: RENDELL, STAPLETON and LAY*, Circuit Judges.
(Filed: June 7, 2004 )
OPINION OF THE COURT
RENDELL, Circuit Judge.
Mark Gary Hough was indicted for violating 8 U.S.C. § 1326(a) and (b)(2) in 2002
*Honorable Donald P. Lay, Senior Circuit Judge for the Eighth Circuit, sitting by
designation.

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1The District Court had jurisdiction based on 18 U.S.C. § 3231. We may review the
District Court’s final judgment of conviction pursuant to 28 U.S.C. § 1291.
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when he illegally attempted to reenter the United States after having been removed in
1998. Hough pled guilty, however, to the charge of knowingly and willfully making a
materially false statement to the INS in violation of 18 U.S.C. § 1001. The indictment
listing the initial charges was dismissed in light of Hough’s guilty plea. He was
sentenced in February of 2003 to time served, followed by two years of supervised
release. He filed a timely notice of appeal.1
Hough contends that his conviction must be reversed because his previous removal
order was obtained in an unconstitutional manner. He argues that his removal
proceedings were invalid because he was denied the effective assistance of counsel, and
he contends that his due process rights were thereby violated. Thus, he urges that his
prosecution for illegal reentry was improper, and that the matter should be remanded to
the agency for a new removal hearing, free of the constitutional violations that allegedly
plagued his first hearing. Unfortunately, these attacks on Hough’s underlying removal
order are to no avail, because the conviction and sentence from which he appeals was not
for illegal re-entry; rather, he appeals after pleading guilty to making a false statement to
an INS official. Hough correctly cites numerous cases supporting the proposition that a
defendant convicted of illegal reentry under 8 U.S.C. § 1326 may launch collateral attacks
on his initial removal proceedings. See, e.g., United States v. Mendoza-Lopez, 481 U.S.

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2Hough notes in passing that he accepted the plea in part because he wanted to be
released from jail as soon as possible. However, he does not argue that this was the
primary motivation for his decision to plead guilty, or that it rendered his plea unknowing
or involuntary. Thus, it provides no basis for setting aside his guilty plea.
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828 (1987). But, as we have stated above, Hough pled guilty to making a false statement
to the INS, not to illegal reentry. The statement involved – a negative response to a
question asking whether he had ever been removed from the United States – was false
regardless of whether Hough’s initial removal proceedings were somehow flawed.
Accordingly, the validity of his previous removal hearing is not at issue on this appeal.
Further, even if we were to view his removal as relevant to the conviction from
which his appeal is taken, Hough knowingly and voluntarily entered a guilty plea and
admitted during the colloquy that he had lied on his I-94 Visa Waiver form. By entering
an unconditional plea based on that fact, he waived any defenses to the charge under 18
U.S.C. § 1001. See Tollett v. Henderson, 411 U.S. 258, 267 (1973); United States v.
Panarella, 277 F.3d 678, 689 (3d Cir. 2002). Hough has not contended that his plea was
in any way defective or that it was made involuntarily.2 Accordingly, we will not permit
him to withdraw his admission of guilt and advance defenses to his initial charges.
For the reasons stated above, we will AFFIRM the District Court’s Judgment of
Conviction.

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