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UNITED STATES v. GOMEZ-RODRIGUEZ

February 23, 1995

UNITED STATES OF AMERICA, Plaintiff,
v.
HECTOR RENE GOMEZ-RODRIGUEZ, Defendant.



The opinion of the court was delivered by: MARILYN HALL PATEL

 Defendant Hector Rene Gomez-Rodriguez is charged by indictment with illegal reentry into the United States after deportation and conviction for an aggravated felony in violation of 8 U.S.C. § 1326(b)(2). Now before the court is defendant's motion to dismiss the indictment on the grounds that his prior conviction is not an aggravated felony within the meaning of 8 U.S.C. §§ 1326 & 1101(a)(43).

 Having considered the parties' arguments and submissions, and for the reasons set forth below, the court enters the following opinion.

 BACKGROUND

 Defendant Hector Rene Gomez-Rodriguez is a native and citizen of Mexico. On October 26, 1990, Gomez plead guilty in San Francisco Superior Court to assault with a deadly weapon in violation of California Penal Code § 245(a)(2). He was sentenced to one year in jail and a term of probation. On August 20, 1991, Gomez' probation was revoked and he was sentenced to five years in state prison. After serving his sentence, Gomez was deported from the United States on November 29, 1993.

 Sometime after he was deported, Gomez reentered the United States without permission from the Attorney General. He was arrested by agents of the Immigration and Naturalization Service on September 22, 1994 and is now charged with illegal reentry into the United States after deportation and conviction for an aggravated felony in violation of 8 U.S.C. § 1326(b)(2). Gomez moves to dismiss the indictment against him on the ground that his 1990 state felony conviction is not an aggravated felony for the purpose of subparagraph (b)(2).

 DISCUSSION

 Gomez is charged by indictment with a violation of section 1326(b)(2). Section 1326 provides:

 
(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, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission; or (B) with respect to an alien previously 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--
 
(1) whose deportation was subsequent to a conviction for commission of a felony (other than an aggravated felony), such alien shall be fined under Title 18, ...

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