862 F.2d 190
Gregory Paul MASON, Plaintiff-Appellant,v.Ronald A. BROOKS;  Edwin Meese, Defendants-Appellees.
No. 87-3991.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Oct. 5, 1988.Decided Nov. 29, 1988.

Edwards E. Merges, Merges, Youngsberg & Larsen, Seattle, Wash., for plaintiff-appellant.
Robert M. Taylor, Asst. U.S. Atty., Seattle, Wash., for defendants-appellees.
Appeal from the United States District Court for the Western District of Washington (Seattle).
Before SCHROEDER, ALARCON and NORRIS, Circuit Judges.
ALARCON, Circuit Judge:

1
Appellant Gregory Mason (Mason) appeals the district court's grant of summary judgment in favor of Ronald A. Brooks ("Brooks"), District Director of the Seattle District of the Immigration and Naturalization Service ("INS") and Edwin Meese III, Attorney General of the United States ("Attorney General").  We affirm.

BACKGROUND

2
Mason, a Canadian citizen and resident, brought this action to compel the Attorney General to allow him to enter the United States and file his application for naturalization under 8 U.S.C. Sec. 1440 (1982).

3
Mason served in the United States Marine Corps from April 9, 1969 to October 8, 1970, including a ten-month tour of duty in Vietnam.  On November 22, 1971, he was convicted of possession with intent to distribute marijuana.  The conviction followed his arrest for possession of 74 pounds of marijuana.  His conviction was expunged pursuant to the Federal Youth Corrections Act.  18 U.S.C. Sec. 5021 (repealed 1984).  Additionally, Mason was later convicted of a misdemeanor count of possession of a controlled substance stemming from a November 10, 1973 arrest for possession of marijuana.  Following the second conviction, the INS commenced deportation proceedings against Mason.

4
On October 7, 1974, a deportation hearing was held before a United States Immigration Judge.  Mason admitted his drug-related convictions, conceded deportability, and requested Canada as the country for his deportation.  Mason waived his right to appeal the deportation decision.  On February 15, 1975, Mason voluntarily departed to Canada.

5
On February 17, 1983, Mason attempted to file an "Application to file Petition for Naturalization" (Form N-400), with the INS by mail.  Along with this petition, he requested temporary admission into the United States so that he could participate in a hearing on his petition.  To receive a naturalization hearing, Mason must file his petition for naturalization in person.  8 U.S.C. Sec. 1445(a) (1982);  8 C.F.R. Secs. 334.11, 334.13 (1988).  The Attorney General has the discretion to grant temporary admission to an alien applying to enter the United States.  Permission to enter temporarily is referred to as "parole" by Congress.  8 U.S.C. Sec. 1182(d)(5) (1982).1

6
On June 9, 1983, the INS rejected Mason's Form N-400 application because he was not physically present in the United States.  On March 15, 1984, Mason wrote William Beeks, Naturalization Officer for the INS, and again requested permission to enter the United States to participate in a hearing on his petition.  On November 26, 1984, Mason contacted Brooks and again requested parole.  Thereafter, the Attorney General reviewed Mason's file and determined that he was ineligible for temporary admission because of his November 10, 1973 conviction for possession of a controlled substance.  Aliens convicted of violating any law relating to a controlled substance are statutorily excludable from entry into the United States.  8 U.S.C. Sec. 1182(a)(23) (1982 & Supp. IV 1986).  Additionally, the Attorney General determined that no facts had been presented to justify granting temporary admission to Mason.

7
On December 19, 1984, Brooks wrote Mason advising him that his request for temporary admission had been denied.  Brooks stated that the decision to deny temporary admission was based on several factors, including Mason's deportation and present excludability because of his drug conviction.2   At Mason's attorney's request, Brooks's decision was subsequently reviewed by the Regional Commissioner for the INS.  The Regional Commissioner reviewed the decision to deny parole.  On August 29, 1985, the Regional Commissioner advised Mason that he agreed with Brooks that the request for parole should be denied.

8
On August 22, 1986, Mason filed a complaint for declaratory judgment in the United States District Court for the Western District of Washington.  Mason sought a declaration that he was entitled to enter the United States and apply for naturalization because of his status as a Vietnam veteran, pursuant to 8 U.S.C. Sec. 1440.  The district court ruled that the Attorney General did not abuse his discretion in denying Mason's request for parole because he was an excludable alien, under 8 U.S.C. Sec. 1182(a)(23), due to his conviction for possession of a controlled substance.3   The district court granted summary judgment in favor of Brooks and the Attorney General.  The complaint for declaratory relief was dismissed.

DISCUSSION

9
Mason contends that:  (1) as a Vietnam veteran, he has a right to enter the United States and to apply for citizenship under 8 U.S.C. Sec. 1440;  and (2) the Attorney General abused his discretion in denying him temporary admission for the purpose of applying for citizenship.

10
We review an order granting summary judgment independently, without deference to the district court's determination.  Turner v. McMahon, 830 F.2d 1003, 1007 (9th Cir.1987), cert. denied, --- U.S. ----, 109 S.Ct. 59, 102 L.Ed.2d 37 (1988).  We also review independently an agency's construction of statutes it must enforce.  However, we give deference to its interpretation thereof.  Ramirez-Ramos v. Immigration & Naturalization Service, 814 F.2d 1394, 1396 (9th Cir.1987).

11
Mason contends that the exclusion provisions of 8 U.S.C. Sec. 1182 are inapplicable to an alien veteran wishing to apply for naturalization under 8 U.S.C. Sec. 1440.  Alternatively, he contends that section 1440 entitles him to enter the United States to apply for citizenship irrespective of his exclusion under section 1182(a)(23).

12
As noted above, to apply for citizenship, Mason must file his petition for naturalization in person, with the clerk of a naturalization court.  8 U.S.C. Sec. 1445(a);  8 C.F.R. Secs. 334.11, 334.13.  Because Mason is a statutorily excludable alien, he may only enter the United States temporarily at the discretion of the Attorney General, unless he can establish independent statutory grounds authorizing his admission.

13
The district court did not address Mason's contention that as a Vietnam veteran, under section 1440, he is entitled to enter the country and to apply for citizenship, notwithstanding the fact that he is an excludable alien.  However, a plain reading of the statute shows that section 1440(b) does not expressly authorize an alien, who served honorably in the military, the unrestricted right to enter the United States, notwithstanding the fact that he is excludable under section 1182.  We can affirm the district court's decision on any ground supported by the record.  United States v. Humboldt, 628 F.2d 549,551 (9th Cir.1980).

14
Section 1440(b) provides that an alien who has served honorably in active-duty status, during the Vietnam hostilities, on behalf of the United States, may be naturalized, without complying with all the requirements of the United States naturalization laws.  The effect of the statute is to eliminate certain of the requirements for naturalization which must ordinarily be met.  Petition for Naturalization of Convento, 210 F.Supp. 265, 266 (D.C.1962), aff'd, United States v. Convento, 336 F.2d 954 (D.C.Cir.1964).

15
Section 1440(b) does not dispense with the requirement that the applicant shall present himself in the office of the clerk to file his petition, unless excused by illness or disability.  8 U.S.C. Sec. 1445(d) (1982).  Nor does it dispense with the requirement that the applicant be lawfully admitted into the United States for permanent residence.  8 U.S.C. Sec. 1445(b) (1982).  Specifically, section 1440(b) permits an alien who served the United States to file a petition for citizenship regardless of his age, and no period of residency or physical presence in the United States is required.  Additionally, the petition may be filed in any court having naturalization jurisdiction, regardless of the alien's place of permanent residence in the United States.  8 U.S.C. Sec. 1440(b);  8 U.S.C. Sec. 1445(b), (f) (1982).

16
Section 1440(b) does not purport to override the exclusionary provisions of section 1182.  Section 1440(b) makes it clear that aliens who qualify because of their military service in Vietnam or other hostilities must show that they are eligible for naturalization in all other respects.  The statute provides in pertinent part:  "A person filing a petition under subsection (a) of this section shall comply in all other respects with the requirements of" the naturalization laws (emphasis added).  8 U.S.C. Sec. 1440(b);  Millan-Garcia v. Immigration and Naturalization Service, 343 F.2d 825, 829 (9th Cir.1965), vacated on other grounds, 382 U.S. 69, 86 S.Ct. 247, 15 L.Ed.2d 144 (1965);  See Knauff v. Shaughnessy, 338 U.S. 537, 546, 70 S.Ct. 309, 94 L.Ed. 317 (1950) (The War Brides Act did not relieve the nonresident alien of her alien status.  Accordingly, as the Immigration Act required, she still had to be "otherwise admissible under the immigration laws.").

17
An examination of the legislative history of the statute indicates that Congressional intent was to expedite the naturalization of members of the military who had served honorably during periods of military hostilities.  Congress enacted section 1440 to encourage aliens to engage in the defense of this country by relieving them of "some of the burdensome requirements of the general naturalization laws" (emphasis added).  H.Rep. No. 1710, 77th Cong., 2d Sess., 2 (1942);  cited in Petition of Delgado, 57 F.Supp. 460, 462 (N.D.Cal.1944) and Petition of You Lo Chen, 74 F.Supp. 619, 621 (Mass.1947), rev'd on other grounds, United States v. Peter You Lo Chen, 170 F.2d 307 (1948).  Section 1440(b) does not on its face entitle Mason to enter the United States, notwithstanding the fact that he is excludable under section 1182(a)(23).

18
Mason voluntarily departed the United States, after admitting that he was excludable because he was convicted of possession of a controlled substance.  Mason does not claim that he is entitled to enter the United States notwithstanding the fact the he was convicted for possession of a controlled substance.  8 U.S.C. Sec. 1182(a)(23).  Mason also does not argue that he need not be physically present in the United States to participate in naturalization proceedings.  Instead, he asserts that the Attorney General abused his discretion by denying him parole so that he can comply with the physical presence requirements of section 1445(a) and (d).  See 8 C.F.R. Secs. 334.11, 334.13 (applicant must appear in person).

19
The Attorney General's decision to deny parole is not reviewed under the "traditional abuse of discretion standard."    Garcia-Mir v. Smith, 766 F.2d 1478, 1485 (11th Cir.1985), cert. denied, Marquez-Medina v. Smith, 475 U.S. 1022, 106 S.Ct. 1213, 89 L.Ed.2d 325 (1986).  Instead, a rejection of parole will be upheld if the agency advanced a facially legitimate and bona fide reason for the denial.  In Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972), the Supreme Court instructed on our scope of review as follows:

20
"[W]hen the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of the discretion ..."

21
Id. at 770, 92 S.Ct. at 2585.

Congress has provided that:

22
[t]he Attorney General may ... in his discretion parole into the United States temporarily, under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States.

23
8 U.S.C. Sec. 1182(d)(5).

24
The legislative history of the parole provision indicates that Congress intended that temporary admission be granted infrequently.  The Senate Report discussing the 1965 amendments to the 1952 Immigration and Nationality Act stated:

25
The parole provisions were designed to authorize the Attorney General to act only in emergent, individual, and isolated situations, such as the case of an alien who requires immediate medical attention, and not for the immigration of classes or groups outside of the limit of the law.

26
S.Rep. No. 748, 89th Cong., 1st Sess., reprinted in 1965 U.S.Code Cong. & Admin.News 3328, 3335.

27
Mason's request for temporary admission is based solely on his desire to file his application for citizenship.  Mason has not shown that temporary admission is compelled by any emergency.  Nor has he demonstrated that temporary admission of a person who has admitted his past convictions of the laws of the United States would be in the public interest.  As an excludable alien, he is a member of a class or group "outside of the limit of the law," and unsuitable for discretionary relief under section 1182(d)(5).

28
Nevertheless, Mason argues that the Attorney General's denial of parole was an abuse of discretion because it was based on erroneous assumptions about Mason's background.  Brooks' letter to Mason denying his parole contained erroneous statements.  First, the letter stated that Mason was convicted of narcotics trafficking rather than possession of marijuana with intent to distribute.  Also, the letter stated that Mason had served only ten months in the service.  In fact, Mason was on active duty for 18 months.  The appellees do not dispute the factual errors.

29
Mason has not demonstrated that the error concerning his length of service was a factor in the denial of parole.  Moreover, the fact that Brooks mislabeled the offense in his letter does not alter the fact that Mason is excludable because he was found guilty of possession of a controlled substance.  We are satisfied that the decision to deny parole was based on the fact that Mason is an excludable alien because of his conviction.

30
Mason also asserts that the denial of temporary admission was based on Brooks' bias against drug law offenders.  This contention stems from an editorial in the Seattle Post-Intelligencer in which Brooks is quoted as saying:

31
I happen to have had the misfortune of having a teenager daughter involved in this kind of thing.  So, quite frankly, I take a very dim view of anything that has to do with drugs or narcotics of any kind.

32
Assuming that the newspaper accurately quoted Brooks, the fact that he may take a "dim view" of persons who are involved with controlled substances does not demonstrate an abuse of discretion in denying parole to Mason.  Congress has forcefully expressed our national policy against persons who possess controlled substances by enacting laws to imprison them and to exclude them from the United States if they are aliens.  The language attributed to Brooks by the editorial merely reflects that he agrees with the Congressional purpose to deal harshly with narcotics law violators.

33
Alternatively, Mason relies upon the Supreme Court decision in United States v. Schwimmer for the proposition that every alien may submit a petition for naturalization.  279 U.S. 644, 49 S.Ct. 448, L.Ed. 889 (1929).  In Schwimmer, the district court refused to grant a resident alien's petition for naturalization because she was unable, without mental reservation, to take the prescribed oath of allegiance.  In upholding the district court's ruling, the Supreme Court stated:  "Every alien claiming citizenship is given the right to submit his petition and evidence in support of it."    Id. at 649, 49 S.Ct. at 449.    However, the alien in Schwimmer had been a resident of the United States for a period of five years prior to her attempted naturalization.  Furthermore, unlike Mason, she was not statutorily excludable.  Additionally, in Schwimmer the Supreme Court did not address the question before us in this case, i.e., whether a statutorily excludable alien must be granted temporary admission in order to apply for citizenship.

34
The fact that Mason was excludable under section 1182(a)(23) because he was convicted of possession of a controlled substance is a facially legitimate and bona fide reason to deny him temporary admission into this country.  See Kleindienst v. Mandel, 408 U.S. at 770, 92 S.Ct. at 2585-86 (denial of temporary admission to an alien excludable under section 1182(a)(28) because he advocates world communism or the establishment in the United States of a totalitarian dictatorship was a facially legitimate and bona fide reason).  Accordingly, under the broad discretionary power accorded to the Attorney General in determining whether to grant temporary admission to an excludable alien, the district court did not err in granting summary judgment.

35
AFFIRMED.

1
 "The Attorney General may ... in his discretion parole into the United States temporarily ... for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States."    8 U.S.C. Sec. 1182(d)(5)

2
 Brooks wrote, "[Mason] may not immigrate to this country, because he is excludable under section [1182(a)(23) ] of the Immigration and Nationality Act, and there are no waivers available to narcotics traffickers."

3
 An alien who has been convicted of a violation of a law relating to a controlled substance is an excludable alien and shall not be admitted into the United States.  8 U.S.C. Sec. 1182(a)(23)


     Case: 11-11163     Document: 00512038440         Page: 1     Date Filed: 10/31/2012

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 31, 2012
                                     No. 11-11163
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

QUENTIN BIVINS,

                                                  Defendant-Appellant

                   Appeals from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:10-CR-304-1

Before STEWART, Chief Judge, and KING and CLEMENT, Circuit Judges.
PER CURIAM:*
        Quentin Bivins appeals his conviction for being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g) and 924(e).
        Bivins argues that the district court erred by admitting evidence of his
prior convictions for unlawful carrying of a firearm and for deadly conduct
involving the discharge of a firearm. “Evidence of prior offenses is admissible if
it is (1) relevant to an issue other than the defendant’s character, and (2) the
incremental probative value of the evidence is not substantially outweighed by

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-11163   Document: 00512038440      Page: 2   Date Filed: 10/31/2012

                                  No. 11-11163

the danger of unfair prejudice to the defendant.” United States v. Pompa, 434
F.3d 800, 805 (5th Cir. 2005) (internal quotation marks and citation omitted); see
United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc);
FED. R. EVID. 403 & 404. We review a district court’s admission of such evidence
under a heightened abuse of discretion standard. United States v. McCall, 553
F.3d 821, 827 (5th Cir. 2008).
      Because Bivins pleaded not guilty, and part of his defense was that the
gun found in his house had been left there by his father, evidence of his past gun
possession was relevant to his knowledge and intent. See United States v.
Olguin, 643 F.3d 384, 390 (5th Cir. 2011), cert. denied 132 S. Ct. 439 (2011);
United States v. Williams, 620 F.3d 483, 489-91 (5th Cir. 2010). Past convictions
for possession of a firearm are highly probative of these issues. See Williams,
620 F.3d at 491. Although the similarity of the past offenses increases the risk
of prejudice, in light of the jury instructions regarding the permissible uses of
this evidence and the limited portion of the trial occupied by the discussion of
these convictions, any prejudice did not substantially outweigh their probative
value. Therefore, the district court did not abuse its discretion. McCall, 553
F.3d at 827.
      Also, Bivins challenges two statements by the Government during closing
arguments. In analyzing a claim of misconduct during closing argument, we
consider de novo whether the challenged remark was improper; if it was, we
then consider whether the remark “affected the substantial rights of the
defendant” under an abuse of discretion standard. United States v. Turner, 674
F.3d 420, 438-39 (5th Cir.) (internal quotation marks and footnote omitted),
cert. denied, 2012 WL 2863449 (Oct. 1, 2012) (No. 12-5168). We consider three
factors: (1) the magnitude of the remark’s prejudice; (2) any cautionary
instructions given; and (3) the strength of the evidence supporting the
conviction. Id. A defendant attempting to show that a remark affected his

                                        2
   Case: 11-11163      Document: 00512038440   Page: 3    Date Filed: 10/31/2012

                                  No. 11-11163

substantial rights must meet a “high bar.” United States v. Ebron, 683 F.3d 105,
140 (5th Cir. 2012).
      During its rebuttal argument, the Government stated that bullets were
close to the gun; however, the evidence showed that the gun was unloaded and
that police did not see any ammunition. Although the district court sustained
Bivins’ objection and instructed the jury to disregard this statement, he argues
that the should have granted a mistrial. We review the denial of a mistrial for
an abuse of discretion. Turner, 674 F.3d at 438.
      Although we agree that the remark was improper, in light of the limited
prejudice resulting from this remark, the district court’s immediate instruction
that the jury should disregard the remark and that the arguments of counsel
were not evidence, we conclude that Bivins failed to meet the “high bar” to show
that his substantial rights were affected. See Ebron, 683 F.3d at 140; Turner,
674 F.3d at 439. Thus, the district court did not abuse its discretion by denying
his motion for a mistrial. See Turner, 674 F.3d at 438.
      Bivins next argues that the district court abused its discretion by
overruling his objection to another remark by the Government that it “would not
be surprised” if Bivins’ father had not seen the gun the two years. The district
court found that the Government was arguing a permissible inference from the
evidence. We agree that this was a permissible inference. See United States v.
Mendoza, 522 F.3d 482, 491 (5th Cir. 2008).
      Finally, Bivins argues that there was no proof that he knew that the gun
had moved in interstate commerce and that § 922(g) is a violation of Congress’s
commerce power. As he concedes, these arguments are foreclosed. See United
States v. Schmidt, 487 F.3d 253, 254 (5th Cir. 2007); United States v. Dancy, 861
F.2d 77, 81-82 (5th Cir. 1988); United States v. Rawls, 85 F.3d 240, 242 (5th Cir.
1996).
      AFFIRMED.

                                        3


562 F.2d 44
Brownv.Virginia Parole Board
No. 77-1074
United States Court of Appeals, Fourth Circuit
7/18/77

1
W.D.Va.

AFFIRMED IN PART AND REMANDED


595 N.W.2d 786 (1999)
Cindy RITZ, Appellant,
v.
WAPELLO COUNTY BOARD OF SUPERVISORS, et al., Appellees.
No. 97-2134.
Supreme Court of Iowa.
June 3, 1999.
*787 Rod Powell of Powell Law Firm, P.C., Norwalk, for appellant.
Joni L. Keith and Lloyd E. Keith of the Keith Law Firm, P.C., Ottumwa, for appellees.
Thomas J. Miller, Attorney General, and Rick Autry, Assistant Attorney General, amicus curiae for the Civil Rights Commission.
Considered by McGIVERIN, C.J., and HARRIS, LAVORATO, NEUMAN, and CADY, JJ.
CADY, Justice.
A terminated employee appeals the dismissal of her petition alleging violations of the Iowa Civil Rights Act and the federal Family and Medical Leave Act. We reverse the district court decision and remand for further proceedings.

I. Background Facts and Proceedings.
Cindy Ritz was employed by the Wapello County Board of Health as a nurse administrator. She initiated this action in district court on April 4, 1997, against the Wapello County Board of Supervisors and *788 Board of Health, as well as the chair person of the Board of Health (collectively referred to as Wapello County) after her employment was terminated. In her petition, Ritz alleged her termination violated the Iowa Civil Rights Act and the federal Family and Medical Leave Act. The petition claimed the termination occurred February 12, 1996. It further alleged Ritz filed a complaint with the Iowa Civil Rights Commission on August 9, 1996, and the Commission issued an administrative release and "right-to-sue" letter on January 8, 1997.
Ritz did not serve Wapello County with an original notice and copy of the petition at the time of the filing. On August 21, 1997, the district court, sua sponte, issued an order giving Ritz until September 19, 1997, to file proof of service. Ritz filed proof of service on September 19, 1997, indicating Wapello County was served on September 17, 1997.
Wapello County responded to the petition by filing a motion to dismiss. It alleged the district court did not have jurisdiction over the case because the termination occurred February 5, 1996, and Ritz did not file a timely complaint with the Iowa Civil Rights Commission. Wapello County also claimed the petition should be dismissed because the delay between the filing of the petition and the service of the petition was abusive.
Ritz responded to the motion to dismiss by submitting numerous documents to the district court explaining the background and procedural history of the case. These documents indicated Ritz was told on February 5, 1996, that her position would be eliminated February 12, 1996. The documents also included an administrative closure letter issued by the Civil Rights Commission informing Ritz the Commission would take no further action on her complaint. The letter included a copy of the Commission "screening data analysis and case determination." This document indicated Wapello County provided the Commission with a legitimate, nondiscriminatory explanation for the termination, and further indicated the complaint was untimely because the date of the termination was February 5, 1996. It also noted Ritz failed to respond to the Commission's questionnaire, which permitted administrative closure under Iowa Administrative Code rule 161-3.12(1). Finally, the documents submitted by Ritz included a copy of an administrative release letter, authorizing Ritz to commence an action in district court.
The district court granted the motion to dismiss.[1] It found the Commission had no jurisdiction to issue the administrative release letter based upon the finding contained in the screening analysis that the complaint was untimely. The district court determined it was unnecessary to address the abusive delay claim because the failure to file a timely complaint with the Commission was dispositive of the case. Neither party filed a motion under Iowa Rule of Civil Procedure 179(b).
*789 On appeal Ritz claims the district court erred by dismissing her petition. Specifically, she contends the district court erred by: (1) finding the Iowa Civil Rights Commission failed to issue a proper right-to-sue letter; and (2) dismissing her Family and Medical Leave Act claim. The State submitted an amicus curiae brief, claiming the Iowa Civil Rights Commission properly issued the administrative release letter. The Board asserts even if the trial court erred, the case should have been dismissed based upon the abusive delay in service of process.

II. Standard of Review.
Our review of rulings on motions to dismiss is limited. Haupt v.. Miller, 514 N.W.2d 905, 907 (Iowa 1994). We review a district court's ruling on a motion to dismiss for correction of errors at law. Iowa R.App.P. 4; McCormick v. Meyer, 582 N.W.2d 141, 144 (Iowa 1998).
A motion to dismiss is properly granted only if a plaintiff's petition "on its face shows no right of recovery under any state of facts." Schaffer v. Frank Moyer Constr., Inc., 563 N.W.2d 605, 607 (Iowa 1997) (quoting Tate v. Derifield, 510 N.W.2d 885, 887 (Iowa 1994)). Allegations in the petition are viewed in a light most favorable to the plaintiff and facts not alleged cannot be relied on to aid a motion to dismiss nor may evidence be taken to support it. Id.

III. Abusive Delay in Service of Process.

A. Preservation of Error.
A rule 179(b) motion is necessary to preserve error when a trial court fails to resolve an issue, claim, defense, or other theory properly submitted to it for adjudication. Iowa R.Civ.P. 179(b); Lawrence v. Grinde, 534 N.W.2d 414, 418 (Iowa 1995). The purpose of a rule 179(b) motion is "to advise counsel and the appellate court of the basis of the trial court's decision in order that counsel may direct his attack upon specific adverse findings or rulings in the event of an appeal." City of Fort Dodge v. Civil Serv. Comm'n, 562 N.W.2d 438, 440 (Iowa App.1997) (quoting Berger v. Amana Soc'y, 254 Iowa 1036, 1040, 120 N.W.2d 465, 467 (1963)).
Ritz contends the Board failed to preserve its abusive delay in service of process claim because it failed to file a rule 179(b) motion requesting the trial court to enlarge its ruling. We have recognized, however, a distinction between successful and unsuccessful parties for purposes of error preservation. See Johnston Equip. Corp. of Iowa v. Industrial Indem., 489 N.W.2d 13, 16 (Iowa 1992) (successful party need not cross appeal to preserve error on ground urged but ignored or rejected in trial court). Rule 179(b) is directed at unsuccessful parties who intend to challenge the district court's ruling on issues it did not resolve. A successful party would have no motivation to raise a rule 179(b) motion to challenge the basis upon which the district court made its decision. Consequently, the requirements of rule 179(b) are only applied to unsuccessful parties challenging the district court decision.
The Board was the successful party in this case. Accordingly, it was not required to file a rule 179(b) motion on its abusive delay in service of process claim.

B. Abusive Delay.
At the time this action was commenced, our rules of civil procedure did not provide a specific time period in which service of process must be made following the filing of a petition.[2]See McCormick, *790 582 N.W.2d at 145. Nevertheless, our cases have required dismissal of a lawsuit if an unjustified abusive delay in completing service occurs. Id.; Alvarez v. Meadow Lane Mall Ltd. Partnership, 560 N.W.2d 588, 591 (Iowa 1997). Under this standard, the court must first determine if the delay was presumptively abusive. McCormick, 582 N.W.2d at 145. If presumptively abusive, the court must then determine if the plaintiff has shown the delay was justified. Id. If it is justified, dismissal is inappropriate. Alvarez, 560 N.W.2d at 591.
The delay between the filing of the petition and service of process in this case was 166 days. Although the district court made no finding whether this delay was presumptively abusive, we have found similar delays in other cases to be presumptively abusive. See Henry v. Shober, 566 N.W.2d 190, 192 (Iowa 1997) (169-day delay presumptively abusive); Alvarez, 560 N.W.2d at 591 (159-day delay presumptively abusive); see also Turnbull v. Horan, 522 N.W.2d 860, 861 (Iowa App.1994) (126-day delay presumptively abusive).
Although we can resolve issues on appeal based upon grounds raised but not relied upon by the district court, those grounds must be supported by facts in the record unless the matter can be decided as a matter of law. See Tate, 510 N.W.2d. at 887. Because of the procedural posture of this case, there is no record on appeal for us to determine whether or not the delay was justified. Therefore, we are unable to decide the appeal on grounds raised but not relied upon by the district court.

IV. Right-to-Sue Letter.
There are two conditions to filing a petition in district court for unfair or discriminatory practices. First, the petitioner must file a timely complaint with the Civil Rights Commission. Iowa Code § 216.16(1)(a) (1997). Second, the Commission must issue a release or right-to-sue letter no earlier than sixty days after the complaint has been on file. Id. § 216.16(1)(b).
The district court determined in this case that the Commission was not authorized to issue a release because it previously found Ritz failed to timely file her complaint. Accordingly, the district court concluded the statutory conditions to filing a petition in district court were not satisfied, and dismissed the petition. The district court erred for two reasons.

A. Right-to-Sue Letter.
The Iowa Civil Rights Commission administers the Iowa Civil Rights Act (Act). Iowa Code ch. 216. Part of the Commission's duties include enforcing rules prohibiting employment discrimination. Id. § 216.6. Individuals asserting violations of the Act must file a complaint with the Commission before any other steps toward legal relief can be taken. Id. § 216.16(1). The case may proceed to district court only after the Commission issues a right-to-sue release. Id. § 216.16(2).
Once a complaint is filed with the Commission, a jurisdictional review pursuant to Iowa Administrative Code regulation 161-3.9 is conducted to determine whether the Commission has jurisdiction over the complaint.[3] Iowa Admin. Code r. 161-3.9 *791 (1993). This review is conducted prior to service of the complaint on the respondent and is an evaluation of the complainant's allegations to dispose of facially inappropriate or untimely claims. Id. r. 161-3.6. Consequently, fact specific or complicated questions involving the timeliness of a complaint are rarely resolved at this juncture in the proceedings. Id. r. 161-3.3(3). Yet, if the Commission determines it has no jurisdiction under this rule 3.9 review, a right-to-sue letter will not be issued. Id. r. 161-3.10(4)(e).
If a complaint survives the initial evaluation under rule 3.9, it is subjected to further scrutiny under a preliminary screening process. Iowa Code § 216.16(6); Iowa Admin. Code r. 161-3.12(1). The preliminary screening process is governed by Iowa Administrative Code regulation 161-3.12. The process "is a tool to remove from the commission's active complaints those cases which the collected preliminary information indicates do not warrant further processing." Id. r. 161-3.12(1)(h).
The first step in the preliminary screening process is to send questionnaires to the parties. Id. r. 161-3.12(1)(a). If a complainant does not return the questionnaire within the designated time, the complaint may be administratively closed. Id. r. 161-3.12(1)(c)(1). If a respondent does not respond to the questionnaire, the case will continue to be screened for further investigation. Id. r. 161-3.12(1)(c)(2). If both responses are received, a determination is made whether a reasonable possibility of a probable cause determination exists or the legal issues in the complaint need development, or whether an administrative closure should be issued. Id. r. 161-3.12(1)(f), (g).
There are limits to the function of the preliminary screening:
Unlike a "no probable cause determination" an administrative closure is not a final determination of the merits of the case. An administrative closure resulting from preliminary screening is merely an estimation of the probable merits of the case based on the experience and expertise of the commission. An administrative closure does not have the same effect as a determination of "no probable cause."
Id. r. 161-3.12(3).
A complainant may request a right-to-sue letter "[a]fter the expiration of 60 days from the timely filing of a complaint with the commission...." Iowa Code § 216.16(2); Iowa Admin. Code r. 161-3.10(1).[4] There are two conditions precedent to the right to sue: (1) the complaint must be filed with the Commission pursuant to rule 3.5; and (2) the complaint has been on file with the Commission for at least sixty days. Iowa Admin. Code r. 161-3.10(2). There are several exceptions to the issuance of a right-to-sue letter, including a provision that the letter will not be sent should the Commission find it does not have jurisdiction pursuant to rule 3.9. Id. r. 161-3.10(4)(e). The only timeliness exception to the issuance of the right-to-sue letter involving rule 3.12 is that an administrative closure does not bar a right-to-sue letter until two years from the issuance of the closure have elapsed. Id. r. 161-3.10(4)(d).
The function of the right-to-sue letter is to certify to the district court that the conditions precedent stated in rule 3.10(2) have been met and none of the exceptions in rule 3.10 apply. It does not certify any factual aspects of the case beyond the limitations of rule 3.10. Thus, a critical inquiry in our analysis is whether the administrative closure and case screening was made pursuant to rule 3.9 or rule 3.12. A rule 3.9 administrative closure prohibits the issuance of a right-to-sue letter, while a rule 3.12 administrative closure does not.
The facts in this case indicate the administrative closure was done as a preliminary screening pursuant to rule 3.12. First, the *792 screening data analysis and case determination do not make reference to either rule. It states the case has been screened under Iowa Code section 216.16. Section 216.16 refers to the preliminary screening of cases and to administrative closure, but does not refer to jurisdictional review. The evaluation also specifically refers to the standards laid out in rule 3.12. Second, the determination was made based on a "review of information provided by the parties." This information was not available at the time of a rule 3.9 jurisdictional review. Further, the issuance of the right-to-sue letter is consistent with a rule 3.12 review. Such a letter would not have been issued if the case had been closed pursuant to rule 3.9. Accordingly, the administrative closure letter was sent following the preliminary screening done pursuant to rule 3.12.
Because the administrative closure letter was sent pursuant to rule 3.12, we must evaluate whether any exceptions to the issuance of the right-to-sue letter implicating rule 3.12 apply to this case. The only timeliness exception implicating rule 3.12 involves the lapse of two years following the administrative closure letter. This exception does not apply to this case.
In addition to applying rule 3.9 instead of rule 3.12, the district court erroneously relied upon factual conclusions in the administrative screening data analysis and case determination pursuant to rule 3.12. This analysis, in connection with the right-to-sue letter, merely certifies the conditions precedent in rule 3.10(2) have been satisfied and none of the right-to-sue exceptions apply. It does not certify factual aspects of the case or applications of the law to the facts of the case beyond the standards enumerated for the issuance of a right-to-sue letter. Consequently, the Commission properly issued a right-to-sue letter, and the district court erred by finding the Commission did not have authority to issue the letter.

B. Challenge to Issuance of Right-to-Sue Letter.
Generally, any challenge to the authority of the Commission to issue a release would need to be asserted before the Commission. The Commission is authorized by statute to issue a release or right-to-sue letter, and the performance of that duty constitutes agency action. See Iowa Code § 216.16(2); Genetzky v. Iowa State Univ., 480 N.W.2d 858, 861 (Iowa 1992) (an action is an agency action if it falls within statutory mandate and area of expertise). As with any other agency action, judicial review is the proper form of relief. See Black v. University of Iowa, 362 N.W.2d 459, 462 (Iowa 1985) (judicial review proceedings are fundamentally different from original actions commenced in the district court); Iowa Code ch. 17A. Yet, an action for discrimination is an original action when filed in district court. Thus, any challenge to the Commission's decision to issue the right-to-sue letter should have been raised before the Commission. Accordingly, the county waived its challenge to the right-to-sue letter.

C. Timeliness of the Complaint.
Although we conclude the right-to-sue letter was properly issued by the Commission, the district court is nevertheless permitted to consider whether the complaint was timely filed.[5] In order to be timely, a complaint with the Commission must be filed within 180 days of the occurrence of an alleged unfair or discriminatory practice or act. Iowa Code § 216.15(12); Iowa Admin. Code r. 161-3.3(1); Iowa Civil Rights Comm'n v. Deere & Co., 482 N.W.2d 386, 388 (Iowa 1992).
It is an unfair or discriminatory practice to "discharge" employees because of their *793 sex. Iowa Code § 216.6(1)(a). However, we have not previously considered when "discharge" occurs for the purpose of triggering the 180-day limitations period.
Our civil rights act is patterned after the federal civil rights act. Annear v. State, 419 N.W.2d 377, 379 (Iowa 1988) (42 U.S.C. § 2000e-5(e) contains a 180-day limitations period). Thus, we find federal interpretation of the federal act instructive. Id. However, our review of both federal and state cases reveals a split of authority on when the limitations period begins. Generally, courts find the period begins on the date the employee was notified of the discharge or the date the employee left the employment. See, e.g., Chardon v. Fernandez, 454 U.S. 6, 8, 102 S.Ct. 28, 29, 70 L.Ed.2d 6, 9 (1981) (holding the limitations period under the civil rights statute began to run after several nontenured administrators received notice of the termination, rather than the date of the actual termination); Delaware State College v. Ricks, 449 U.S. 250, 254-55, 101 S.Ct. 498, 502, 66 L.Ed.2d 431, 437 (1980) (holding the 180-day limitations period ran from the date a university professor was notified he failed to gain tenure, rather than the date his "terminal contract" expired);[6]Gorman v. Hughes Danbury Optical Sys., 908 F.Supp. 107, 110-11 (D.Conn.1995) (limitations period under ADEA was triggered by letter notifying employee of termination); Hale v. New York State Dep't of Mental Health, 621 F.Supp. 941, 942 (S.D.N.Y.1985) (limitations period ran from date employee received letter from employer notifying him of termination rather than date of actual termination); Romano v. Rockwell Int'l, Inc., 14 Cal.4th 479, 59 Cal.Rptr.2d 20, 926 P.2d 1114, 1123 (1996) (holding limitations period under state Fair Employment and Housing Act began to run upon actual termination rather than when employee was informed of discharge); Ross v. Stouffer Hotel Co., 76 Hawai`i 454, 879 P.2d 1037, 1044 (1994) (90-day period to file employment discrimination complaint begins to run upon actual discharge rather than notice of discharge); Keelan v. Bell Communications, 289 N.J.Super. 531, 674 A.2d 603, 607-08 (1996) (the limitations period runs from the date of discharge rather than notification of discharge).
In this case, the facts underlying the timeliness issue have not been fully developed. The district court did not decide when discharge occurred and the parties did not raise the issue on appeal. We therefore decline to address the issue of when "discharge" occurs for the purpose of triggering the 180-day limitations period.

V. Family and Medical Leave Act Claim.
Ritz also contends the district court erred by dismissing the federal Family and Medical Leave Act claim. She correctly points out there is no statute requiring her to bring this claim to the Iowa Civil Rights Commission before filing a petition in district court alleging a violation of the Family and Medical Leave Act. The statutory prerequisites for the filing of a claim do not apply to a different claim merely because it is included in the same petition. Accordingly, the district court erred by dismissing this claim.

VI. Conclusion.
We reverse the district court decision and remand the case for further proceedings, which may include a determination of the claim of abusive delay in service of *794 process in addition to the timeliness of the discrimination claim.
REVERSED AND REMANDED.
NOTES
[1]  We have held that a "motion to dismiss can neither rely on facts not alleged in the petition (except those of which judicial notice may be taken) nor be aided by an evidentiary hearing." Tate v. Derifield, 510 N.W.2d 885, 887 (Iowa 1994) (in deciding whether to grant a motion to dismiss in a loss of consortium suit, the district court was limited to consideration of facts alleged in the petition, and thus it improperly took judicial notice of facts contained in husband's criminal court file); Bruce v. Sarver, 472 N.W.2d 631, 632 (Iowa App.1991) (district court could not take judicial notice of a letter establishing paternity on a motion to dismiss).

Ritz's resistance to the motion to dismiss referred to and included various exhibits that were not included or referred to in the petition. These documents included the administrative closure letter and the screening data analysis. Both parties and the district court referred to these documents. There is no mention, however, of judicial notice. We therefore consider any objection to the form of the record presented to the court on the motion to dismiss waived. See Clinton Nat'l Bank v. Kirk Gross Co., 559 N.W.2d 282, 283 n. 1 (Iowa 1997).
[2]  Iowa Rule of Civil Procedure 49 was amended effective January 24, 1998, to provide:

If service of the original notice is not made upon the defendant, respondent, or other party to be served within 90 days after filing the petition, the court, upon motion or its own initiative after notice to the party filing the petition, shall dismiss the action without prejudice as to that defendant, respondent, or other party to be served or direct an alternate time or manner of service. If the party filing the papers shows good cause for the failure of service, the court shall extend the time for service for an appropriate period.
Iowa R.Civ.P. 49(f).
[3]  Rule 3.9 provides:

Jurisdictional review. Upon the receipt of a statement offered as a complaint, the executive director or designee shall review the complaint to determine whether the commission has jurisdiction of the complaint. A no jurisdiction determination shall constitute final agency action for purposes of judicial review.
Iowa Admin. Code r. 161-3.9 (1993).
[4]  The legislature enacted the right-to-sue provision in order to relieve the backlog of cases before the Commission. Smith v. ADM Feed Corp., 456 N.W.2d 378, 381 (Iowa 1990).
[5]  Had the Commission made a final agency determination regarding timeliness, the proper mechanism to attack the finding would be on judicial review. In this case, however, the Commission did not make a final jurisdictional finding based upon timeliness, thereby rendering timeliness an appropriate issue before the district court. Iowa Code § 216.16(1).
[6]  Prior to the decision in Ricks, several courts addressed issues related to the limitations period. See, e.g., Chappell v. Emco Mach. Works Co., 601 F.2d 1295, 1304 (5th Cir.1979); Krzyzewski v. Metropolitan Government of Nashville & Davidson Co., 584 F.2d 802, 805 (6th Cir.1978); Bonham v. Dresser Indust., Inc., 569 F.2d 187, 192 (3d Cir.1977); Egelston v. State University College, 535 F.2d 752 (2d Cir.1976); Moses v. Falstaff Brewing Corp., 525 F.2d 92, 94 (8th Cir.1975).


                                                                                Opinions of the United
2007 Decisions                                                                                States Court of Appeals
                                                                                for the Third Circuit

9-10-2007

USA v. Amponsah
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3641

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"USA v. Amponsah" (2007). 2007 Decisions. Paper 456.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/456

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 2007 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. 05-3641
                                   __________

                          UNITED STATES OF AMERICA

                                        v.

                               YAW AMPONSAH,

                                    Appellant.
                                   __________

                  On Appeal from the United States District Court
                            for the District of New Jersey
                               (D.C. No. 01-cr-00479)
                   District Judge: Honorable Mary Little Cooper
                                     __________

                   Submitted Under Third Circuit LAR 34.1(a),
                                June 28, 2007

             Before: BARRY, FUENTES, and GARTH, Circuit Judges.

                            (Filed: September 10, 2007)

                                   __________

                              OPINION OF THE COURT
                                  __________

FUENTES, Circuit Judge.
       After appellant Yaw Amponsah pleaded guilty to one count of conspiracy to

distribute and possess more than 500 grams of cocaine in violation of 21 U.S.C. §§

841(a)(1) and (b)(1)(B) and 21 U.S.C. § 846, the District Court sentenced him to 155

months in prison. Amponsah’s principal argument on appeal is that his sentence is

unreasonable. For the reasons set forth below, we will affirm the sentence.

                                   I. BACKGROUND

       In 1988, Amponsah, a citizen of Ghana, entered the United States on a student visa

and thereafter remained in the country illegally. Around 2001, the government received

information from a cooperating witness in an ongoing narcotics investigation that, after

arriving in the country, Amponsah served as a drug courier for a New Jersey-based drug-

trafficking ring known as the “Garba Organization.” On May 28, 2001, federal agents

attempted to interview Amponsah at his home in Fords, New Jersey. Agents initially

confronted Amponsah about his immigration status, but Amponsah refused to provide any

information without an attorney present. Before terminating the interview, agents

informed Amponsah that he was the target of a federal narcotics investigation and

instructed him to have his attorney contact federal authorities.

       One month later, on June 25, 2001, Amponsah voluntarily met with federal agents

after they informed him they had received additional information concerning his drug-

trafficking activities. During the meeting, Amponsah confirmed that, in 1996, he

smuggled 2 to 3 kilograms of cocaine from New Jersey to London on behalf of the Garba

Organization; later recruited two other couriers to participate in drug-smuggling trips;

                                              2
and, in March 1997, invested his own money in a smuggling venture. In two subsequent

meetings with federal authorities on July 2 and 10, 2001, Amponsah provided additional

information about several individuals involved in the Garba Organization.

       On July 19, 2001, Amponsah was charged in a one-count indictment with

conspiracy to distribute and possess more than 500 grams of cocaine, contrary to 21

U.S.C. §§ 841(a)(1) and (b)(1)(B), in violation of 21 U.S.C. § 846, an offense that carries

a mandatory minimum term of imprisonment of 5 years and a maximum term of

imprisonment of 40 years.1 At his arraignment in August 2001, the United States District

Court for the District of New Jersey placed Amponsah under pretrial supervision, the

terms of which required him to surrender his travel documents and remain within the New

York-New Jersey metropolitan area.

       In October 2001, Amponsah entered into a written plea agreement with the

government which included the following stipulations concerning application of the

United States Sentencing Guidelines: (1) the offense involved at least 5 but less than 15

kilograms of cocaine, resulting in a base offense level of 32 under § 2D1.1(c)(4); (2) if his

       1
        Section 841(a)(1) renders it unlawful for any person knowingly or intentionally
“to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute,
or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1). Section 841(b)(1)(B)
provides, in relevant part, that an individual who violates § 841(a) by committing an
offense that involves more than 500 grams of a cocaine “shall be sentenced to a term of
imprisonment which may not be less than 5 years and not more than 40 years.” 21 U.S.C.
§ 841(b)(1)(B). Section 846 provides that “[a]ny person who attempts or conspires to
commit any offense defined in this subchapter shall be subject to the same penalties as
those prescribed for the offense, the commission of which was the object of the attempt or
conspiracy.” 21 U.S.C. § 846.

                                             3
cooperation with the government continued through the date of sentencing, Amponsah

would be entitled to a 2-level reduction for acceptance of responsibility pursuant to §

3E1.1(a); (3) based on his willingness to plead guilty, Amponsah would be entitled to an

additional 1-level reduction for acceptance of responsibility pursuant to § 3E1.1(b); (4)

because he did not play an aggravating or a mitigating role in the offense, there would be

neither an increase nor a decrease in offense level pursuant to § 3B1.1 or § 3B1.2,

respectively; and (5) based on the foregoing, the total offense level would be 29.

       In addition, the plea agreement provided that the government retained “sole

discretion” to determine whether Amponsah fully complied with the terms of the

agreement and to seek a reduction for substantial assistance pursuant to § 5K1.1. The

plea agreement further stated that “[t]he sentence to be imposed is within the sole

discretion of the sentencing judge” and the government “cannot and does not make any

representation or promise as to what guideline range will be found applicable . . . or as to

what sentence Yaw Amponsah will ultimately receive. ” (Appellant’s Appx. at 91.)

       At a plea hearing held on December 19, 2001, the District Court engaged

Amponsah in an extensive colloquy concerning the terms of the plea agreement and the

binding nature of the stipulations set forth therein. After affirming that he entered into the

agreement knowingly and voluntarily, Amponsah pled guilty. He was thereafter

continued on release under the supervision of the United States Probation Office pending

sentencing.

       Several significant developments took place before his sentencing. In February

                                              4
2003, Joe Mensah, a close friend of Amponsah’s, was tried on a related federal drug-

trafficking charge. Although the government interviewed Amponsah in preparation for

Mensah’s trial, federal prosecutors decided not to call Amponsah as a witness because of

his “evasiveness” during pre-trial preparation. At his trial, Mensah testified that prior to

his indictment, Amponsah tipped him off about the government’s investigation and

informed him that the government attempted to persuade him to wear a wire and record

their conversations.2 Although much of Mensah’s trial testimony was not credible, the

government believed this aspect of his testimony because, aside from government agents

involved in the investigation, Amponsah was the only individual who knew about the

wire request.

       In April 2003, after Mensah was convicted, the government confronted Amponsah

about Mensah’s trial testimony. Amponsah denied that he had informed Mensah about

the government’s investigation, but could not explain how Mensah learned about the wire

request. As a result, the government informed Amponsah that his § 5K1 letter was in

jeopardy. Several days later, Amponsah fraudulently obtained travel documents from the

Ghanian consulate in New York and, on April 23, 2003, fled to Ghana. In August 2003,

Ghanian authorities arrested Amponsah and extradited him to the United States.

       On July 25, 2005, after a three-day sentencing hearing, the District Court imposed

       2
        Amponsah’s plea agreement specifically provided that “[f]ull cooperation
includes participating, if requested, in affirmative investigative techniques, such as . . .
tape recording conversations.” (Appellant’s Appx. at 90.).

                                               5
a sentence of 155 months of imprisonment. In calculating the recommended Guidelines

range, the District Court enforced the stipulations concerning drug quantity set forth in

the plea agreement, imposed a 2-level enhancement for obstruction of justice, denied

Amponsah reductions for minor role and acceptance of responsibility, and found him

ineligible for safety valve relief. In addition, the District Court concluded that the

government did not act in bad faith by declining to move for a § 5K1.1 reduction for

substantial assistance. Based on the District Court’s calculations, Amponsah was

assigned a total offense level of 34 which, when combined with a criminal history

category of I, resulted in a recommended Guidelines range of 151 to 188 months of

imprisonment.3

       Turning to the sentencing factors set forth in 18 U.S.C. § 3553(a), the District

Court noted that a sentence at the upper end of the recommended Guidelines range was

justified. The District Court nevertheless credited Amponsah for his partial cooperation

with the government and sentenced him at the lower end of the range. In addition, as a

special condition of supervised release, the District Court required Amponsah to

cooperate with immigration officials to resolve any issues related to his status in the

United States and instructed him not to re-enter the country if deported unless he obtained

the written permission of the United States Attorney General. The District Court entered

       3
         Between the time Amponsah pleaded guilty and his sentencing, the Supreme
Court issued its decision in United States v. Booker, 543 U.S. 220 (2005), which rendered
the Guidelines advisory. In calculating Amponsah’s advisory sentencing range, the
District Court applied the 2004 version of the Guidelines.

                                              6
the judgment of conviction and sentence on July 28, 2005. This timely appeal followed.

                 II. JURISDICTION AND STANDARD OF REVIEW

       We have jurisdiction over this appeal pursuant to 18 U.S.C. § 3742(a)(1). See

United States v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006). When reviewing a district

court’s imposition of sentence, we review its factual findings for clear error. United

States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc). We exercise plenary review

over a district court’s interpretation of the Guidelines and its resolution of constitutional

issues. McKoy, 452 F.3d 234, 236 (3d Cir. 2006). We review the ultimate sentence

imposed for reasonableness. Cooper, 437 F.3d at 327.

                                      III. ANALYSIS

       We first address the issues relating to the District Court’s Guidelines calculations,

and then briefly address the constitutional claims raised in Amponsah’s pro se

supplemental brief.4

       4
           After counsel filed his opening brief on appeal, Amponsah filed a pro se
“Motion for Permission to File A Supplemental Brief” which asserts additional arguments
not raised in counsel’s brief. Although a party represented by counsel is typically
prohibited from filing a pro se brief, Third Circuit Local Appellate Rule 31.3 provides
that “[c]ounsel may choose to include the arguments in his or her brief or may in unusual
circumstances file a motion to file a supplemental brief, if appropriate.” 3d Cir. R. 31.3.
Here, counsel filed a “Motion to File Supplemental Brief,” adopting the arguments set
forth in the pro se brief. We granted both motions. In addition, on February 23, 2007,
Amponsah filed a pro se motion entitled “Permission to File Motion to Supplement Brief”
based on Cunningham v. California, 127 S. Ct. 856 (2007), which counsel subsequently
adopted on March 14, 2007. Although we note that Rule 28(j) of the Federal Rules of
Appellate Procedure allows a party to submit a letter citing supplemental authority
without first seeking permission of the Court, we nevertheless granted the motion.

                                               7
                     A. The District Court’s Guidelines Calculation

       Amponsah challenges the District Court’s (1) calculation of his base offense level;

(2) rulings on obstruction of justice and acceptance of responsibility; (3) denial of safety

valve relief; and (4) determination that the government’s refusal to move for a § 5K1.1

reduction for substantial assistance was not in bad faith. We address each of these

arguments in turn.

                                    1) Base Offense Level

       Amponsah’s base offense level corresponds to the 5 to 15 kilograms of cocaine

stipulated to by the parties in the plea agreement. He contends, however, that the factual

record was insufficient to support the stipulation. We disagree. At his sentencing

hearing, the District Court noted that “[o]f course, the Court needs to satisfy itself that the

quantity to which the parties had stipulated . . . [has] an adequate factual basis and that the

quantity has been calculated correctly.” (Appellee’s Appx. at 97.) Amponsah correctly

points out that the District Court stated that the drug quantity set forth in the pre-sentence

investigation report (“PSR”) was “not quite sufficient to provide the factual basis for a

finding of 5 to 15 kilograms because it refers to the two to three kilograms that Mr.

Amponsah carried in his courier trip. It does not refer to . . . the additional quantities that

were carried by other couriers recruited by Amponsah.” The District Court did not,

however, end its analysis there. (Appellee’s Appx. at 97-98.)

       Rather, the District Court went on to observe that Amponsah admitted in his plea

allocution that he (1) served as a courier in the 1996 drug-smuggling trip, and (2)

                                               8
recruited two couriers who later smuggled additional quantities of cocaine. In addition,

the government proffered the testimony of a convicted member of the Garba Organization

which would purportedly establish that the 1996 courier trip involved 2 to 3 kilograms of

cocaine, and that the two couriers Amponsah recruited smuggled an additional 3

kilograms of cocaine each. Amponsah declined the District Court’s invitation to conduct

an evidentiary hearing on this issue. Accordingly, the District Court credited the

government’s proffer and concluded that there was sufficient evidence in the record to

establish that the offense involved at least 8 to 9 kilograms of cocaine, well within the 5

to 15 kilogram range stipulated to in the plea agreement.5 Based on the foregoing, we fail

to see how the District Court’s drug quantity determination was clearly erroneous.6

       5
        In attributing to Amponsah the additional 6 kilograms of cocaine smuggled by
the two couriers, the District Court noted that § 1B1.3 of the Guidelines provides, in
relevant part, that “in the case of jointly undertaken criminal activity,” a defendant’s base
offense level shall be determined on the basis of “all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken criminal activity.” U.S.
Sentencing Guidelines Manual § 1B1.3(a).
       6
         In his pro se supplemental brief, Amponsah asserts, for the first time, that the
District Court’s reliance on his proffer statements to determine drug quantity violates §
1B1.8 of the Guidelines, which provides, in relevant part:
       Where a defendant agrees to cooperate with the government by providing
       information concerning unlawful activities of others, and as part of that
       agreement the government agrees that self-incriminating information
       provided pursuant to that agreement will not be used against the defendant,
       then such information shall not be used in determining the applicable
       guideline range, except to the extent provided in the agreement.
U.S. Sentencing Guidelines Manual § 1B1.8(a). The government correctly points out
that, in the plea agreement, the government expressly reserved the right to provide the
District Court with all information relevant to sentencing, “including information
provided by Yaw Amponsah before and after signing [the plea] agreement and protected

                                              9
                2) Obstruction of Justice and Acceptance of Responsibility

       Because of Amponsah’s flight to Ghana, as well as the evidence indicating that he

warned Joe Mensah about the government’s investigation, the District Court imposed a 2-

level increase for obstruction of justice pursuant to § 3C1.1, and denied a 3-level

reduction for acceptance of responsibility pursuant to § 3E.1.1. We discern no error in

either of the District Court’s rulings.

       Section 3C1.1 provides that a two-level enhancement is appropriate where the

defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the

administration of justice during the course of the investigation, prosecution, or sentencing

of the . . . offense.” U.S. Sentencing Guidelines Manual § 3C1.1. Application Note 4 to

§ 3C1.1 states that “escaping or attempting to escape from custody before trial or

sentencing” is an example of the type of conduct to which the enhancement applies. U.S.

Sentencing Guidelines Manual § 3C1.1, cmt. n.4.

       Section 3E1.1(a) allows a district court to grant a 2-level decrease in offense level

if “defendant clearly demonstrates acceptance of responsibility for his offense.” U.S.

Sentencing Guidelines Manual § 3E1.1(a). If a defendant receives such a reduction, he is

eligible for an additional 1-level decrease if the offense level (prior to application of §

3E1.1(a)) is greater than 16. U.S. Sentencing Guidelines Manual § 3E1.1(B).

by U.S.S.G. 1B1.8.” (Appellant’s Appx. at 91.) In any event, as set forth above, the
District Court’s drug quantity determination was not based solely on Amponsah’s plea
allocution.

                                              10
Application Note 4 to § 3E1.1 provides that except in “extraordinary circumstances,”

conduct resulting in an enhancement for obstruction of justice “ordinarily indicates that

the defendant has not accepted responsibility for his criminal conduct.” U.S. Sentencing

Guidelines Manual § 3E1.1, cmt. n.4.

       Assuming for purposes of its § 3C1.1 analysis that Amponsah’s motivation for

fleeing the United States was fear of retaliation from members of the Garba Organization,

the District Court concluded that an enhancement was nevertheless warranted. Given that

it is uncontested that Amponsah fled to Ghana, we conclude that the enhancement was

entirely reasonable. See e.g., United States v. Muro, 357 F.3d 743, 745 (8th Cir. 2004)

(“Although the district court found credible [defendant’s] claim of fear for his safety, it

reasonably concluded that [defendant] willfully chose the course of conduct that

obstructed justice instead of choosing other options, such as contacting [the government]

to report the threat.”). Likewise, we do not think it was clearly erroneous for the District

Court to conclude that the record evidence did not establish “extraordinary

circumstances” that would justify a reduction for acceptance of responsibility. See, e.g.,

United States v. Miller, 77 F.3d 71, 77 (4th Cir. 1996) (“Accepting as true, for purposes

of this appeal, [defendant’s] statement that he fled out of fear for his life, such fear does

not excuse [his] conduct.”).

       In sum, we are not persuaded that the District Court’s rulings with respect to

obstruction of justice and acceptance of responsibility were improper.

                                    3) Safety Valve Relief

                                              11
       Section 5C1.2, the so-called “safety valve” provision of the Guidelines, allows a

district court to impose a sentence below the statutory mandatory minimum, provided the

defendant meets certain specific requirements. In this case, the District Court found

Amponsah ineligible for safety valve relief, because he failed to satisfy the requirement

that “not later than the time of the sentencing hearing, the defendant has truthfully

provided to the Government all information and evidence the defendant has concerning

the offense or offenses that were part of the same course of conduct or of a common

scheme or plan.” See U.S. Sentencing Guidelines Manual § 5C1.2(a)(5).

       Amponsah argues that the District Court did not identify any useful information

that he could have provided to the government and, therefore, should have granted him a

safety valve reduction. Amponsah’s argument is contradicted by the record, which shows

that he provided the government with vague and contradictory information concerning

Joe Mensah’s drug-trafficking activities. We therefore find no error in the District

Court’s conclusion that:

       The fact that he was not consistent concerning what he knew about [Joe]
       Mensah’s criminal activity and the fact that he did nothing to correct his
       inconsistent responses to the Government in time for the Government either
       to make use of Mr. Amponsah’s information at Mensah’s trial or even down
       to today . . . leads this Court to conclude that Mr. Amponsah is not entitled
       to the safety valve.

(Appellee’s Appx. at 310.)

                       4) § 5K1.1 Motion for Substantial Assistance

       Amponsah argues that the District Court relied on inadmissible hearsay in

                                             12
determining that the government did not act in bad faith when it refused to move for a §

5K1.1 reduction for substantial assistance. Specifically, Amponsah argues that the

District Court improperly relied on the statement of Special Agent Tim Mahoney of the

United States Immigration and Customs Enforcement that Joe Mensah testified at his trial

that Amponsah warned him about the government’s investigation. Amponsah’s hearsay

argument is entirely meritless, as it is well-settled that “[h]earsay is fully admissible at a

sentencing hearing, so long as it has sufficient indicia of reliability.” United States v.

Brigman, 350 F.3d 310, 315 (3d Cir. 2003); see also U.S. Sentencing Guidelines Manual

§ 6A1.3(a) (“In resolving any dispute concerning a factor important to the sentencing

determination, the court may consider relevant information without regard to its

admissibility under the rules of evidence applicable at trial, provided that the information

has sufficient indicia of reliability to support its probable accuracy.”). Having reviewed

the record, we conclude that the District Court did not err in concluding that Agent

Mahoney’s testimony was sufficiently reliable so as to provide a reasonable basis for the

government’s decision not to move for a § 5K1.1 reduction in sentence.

    B. Additional Arguments Raised in Amponsah’s Supplemental Pro Se Brief

       In his pro se supplemental brief, Amponsah argues that the sentence imposed

violates his Sixth Amendment rights under Booker. In addition, he contends that the

District Court improperly ordered him deported. Both arguments patently lack merit.

                                     1) Booker Argument

       In United States v. Booker, the Supreme Court held that the mandatory nature of

                                              13
the Guidelines “violated the Sixth Amendment because it made sentence enhancement

dependent on facts not proved to a jury beyond a reasonable doubt.” McKoy, 452 F.3d at

239. The Supreme Court remedied this constitutional infirmity by holding that the

Guidelines are advisory. Id. Accordingly, under the current advisory Guidelines regime,

a district court may “impose a sentence anywhere under [the statutory] maximum without

. . . proof beyond a reasonable doubt.” Grier, 475 F.3d at 565.

       Amponsah’s Booker argument is defective because, contrary to the assertions set

forth in his pro se supplemental brief, the District Court did not treat the Guidelines as

mandatory. Rather, the District Court was well aware of the advisory nature of the

Guidelines and sentenced Amponsah after first calculating the recommended Guidelines

range, and then exercising its sentencing discretion under § 3553(a).7 The 155-month

sentence imposed by the District Court, which was at the low end of the recommended

range, was well below the maximum 40 years of imprisonment provided for by statute.

We therefore fail to see how the sentence raises any Sixth Amendment concerns. Indeed,

Amponsah’s entire Sixth Amendment argument rests on the mistaken assertion that the

maximum sentence for the offense to which he pleaded guilty was five years of

       7
         In arguing that his sentence was unreasonable, Amponsah does not contend that
the District Court improperly applied the sentencing factors set forth in § 3553(a), but
rather, focuses exclusively on the District Court’s Guidelines calculations. We
nevertheless note that our review of record shows that the District Court carefully and
thoroughly applied all of the sentencing factors set forth in § 3553(a), including the
recommended Guidelines range, in reaching its sentencing determination.

                                             14
imprisonment.8

                                    2) Immigration Status

         Amponsah’s argument that the District Court “improperly ordered his deportation”

likewise lacks merit. In setting forth the special conditions of supervised release, the

District Court ordered Amponsah to “cooperate with the immigration services to resolve

his status in the United States” and, if deported, prohibited him from reentering the

country without the written permission of the United States Attorney General.

(Appellee’s Appx. at 350.) The government is correct that these conditions of supervised

release were entirely proper. See, e.g., United States v. Tinoso, 327 F3d. 864, 866 n.2

(9th Cir 2003) (noting that several Courts of Appeals have held that district courts may, as

a condition of supervised release under 18 U.S.C. § 3583(d), order a criminal defendant to

surrender to immigration officials upon completion of a term of imprisonment and to

remain outside of the United States if deported).

                                    IV. CONCLUSION

         For the foregoing reasons, we will affirm the sentence imposed by the District

Court.

         8
          The Supreme Court decision in Cunningham v. California, which Amponsah
relies on in his Rule 28(j) letter, is also unavailing. Cunningham, which involved
California’s determinate sentencing law, presented a set of issues entirely inapposite to
this case.

                                             15


798 So.2d 957 (2001)
STATE of Louisiana
v.
Almetric DEBROW.
No. 2000-KO-2221.
Supreme Court of Louisiana.
October 5, 2001.
*958 Denied.


38 F.3d 1217NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
UNITED STATES of America, Plaintiff-Appellee,v.Meyjon Y. MAYLE, Defendant-Appellant.
No. 94-3008.
United States Court of Appeals, Sixth Circuit.
Oct. 17, 1994.

Before:  MILBURN, BOGGS and NORRIS, Circuit Judges.

ORDER

1
Meyjon Y. Mayle appeals her judgment of conviction and sentence following her guilty plea to one count of conspiracy to commit five bank robberies in violation of 18 U.S.C. Sec. 371 and one count of bank robbery in violation of 18 U.S.C. Sec. 2113(a) and 18 U.S.C. Sec. 2.  The district court sentenced Mayle to fifty-seven months of imprisonment, a three-year term of supervised release, and imposed a $100 special assessment.  The court also ordered Mayle to pay restitution in the amount of $8,870.  The parties have waived oral argument, and this panel unanimously agrees that oral argument is not needed in this case.  Fed.R.App.P. 34(a).

2
In this timely appeal, Mayle argues that the district court improperly increased her sentence guideline range by four levels pursuant to U.S.S.G. Secs. 1B1.2(d) and 3D1.4(a).  The court concluded that, as Mayle had pleaded guilty to conspiracy to commit more than one offense, she must be treated for sentencing purposes as having been convicted on a separate count of conspiracy for each offense that she conspired to commit.  Mayle argues that the Sentencing Commission exceeded its authority in promulgating Sec. 1B1.2(d).

3
Upon review, we conclude that the district court properly sentenced Mayle.  We review the district court's factual findings for clear error,  United States v. Watkins, 994 F.2d 1192, 1195 (6th Cir.1993), and review the district court's legal conclusions de novo.  Id.

4
The district court properly increased Mayle's total offense level under Sec. 1B1.2(d).  Adjustments under that section are appropriate, as long as the punishment for conviction of the multiple-object conspiracy does not exceed the statutory maximum for the offense carrying the least severe penalty.   See United States v. Fisher, 22 F.3d 574, 576 (5th Cir.1994);   see also United States v. Cooper, 966 F.2d 936, 941 (5th Cir.), cert. denied, 113 S.Ct. 481 (1992).  In this case, the statutory maximum for the offense carrying the least severe penalty is found in 18 U.S.C. Sec. 371.  The maximum term of imprisonment provided by that statute is five years.  As Mayle's sentence of fifty-seven months of imprisonment does not exceed this statutory maximum, we conclude that the district court properly applied U.S.S.G. Sec. 1B1.2(d) and Sec. 3D1.4.

5
Accordingly, we affirm the district court's judgment.