The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
On April 8, 2010, a federal grand jury issued an indictment charging Hector Rogelio Casas-Montejano ("Defendant") with violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). (Doc. 7). Defendant's motion to dismiss the indictment is now before the court. (Doc. 21).
Defendant was born in Mexico on July 11, 1962. On October 16, 1980, Defendant was granted an SA-1 lawful permanent resident visa. In 1989, Defendant suffered a conviction in the California Superior Court for possession of a machine gun, a felony.
In 1992, Defendant was indicted for multiple narcotics-related offenses in the United States District Court for the Central District of California. Defendant pled guilty to Possession of Ephedrine with Intent to Manufacture, Distribution of Methamphetamine, and Felon in Possession of a Firearm, pursuant to the terms of a plea agreement. Defendant was sentenced on June 14, 1995 to 51 months imprisonment on each count, to be served concurrently.
On October 27, 1997, the United States Immigration and Nationalization Service initiated removal proceedings against Defendant based on his 1995 convictions. Defendant appeared before the immigration court on December 9, 2007, January 26, 1998, February 24, 1998, and March 23, 1998. Defendant was not advised that he had any grounds for relief from removal at any of his appearances before the immigration court. Defendant was ordered removed on March 23, 1998.
From 1998 to the time of his removal, Defendant filed numerous requests seeking relief from his removal order with the Board of Immigration Appeals ("BIA"), the U.S. District Court for the Central District of California, and the Ninth Circuit, to no avail. Meanwhile, the Assistant United States Attorney responsible for negotiating Defendant's plea bargain in the 1995 conviction in the methamphetamine case, Patrick McLaughlin ("AUSA McLaughlin"), endeavored to help Defendant avoid removal. On December 9, 1999, AUSA McLaughlin sent a letter to Defendant's Deportation Officer outlining the assistance Defendant had provided to the government in various criminal cases, advising that the government was attempting to obtain an S-Visa for Defendant, and asking that Defendant be released from custody pending a final removal hearing. In 2004, AUSA McLaughlin filed a motion with the court of conviction in Defendant's 1995 methamphetamine case ("conviction court") pursuant to Federal Rule of Criminal Procedure 48 seeking to dismiss Defendant's 1992 felon in possession indictment. On August 31, 2004, the conviction court issued a three-sentence order granting McLaughlin's motion ("Rule 48 Order"). The Rule 48 Order states:
Pursuant to Rule 48 of the Federal Rules of Criminal Procedure, and by leave of court endorsed hereon, the United States Attorney for the Central District of California hereby moves to dismiss with prejudice Count Six of the indictment in the above-referenced case as to defendant HECTOR CASAS. Count Six alleges a violation of Title 18, United States Code, Sections 922(g)(1), 924(d)(1)...It is so ordered. (Doc. 22, Ex. U).
Ultimately, Defendant was removed from the United States on September 1, 2004. On March 29, 2010, United States Immigration and Custom's Enforcement ("ICE") officers discovered that Defendant had returned to the United States and was residing in Bakersfield, California. On April 8, 2010, Defendant was indicted for violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2).
Defendant seeks dismissal of his indictment for violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). Section 1326(a) provides: Subject to subsection (b), any alien who--(1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter (2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this or any prior Act, shall be fined under title 18, United States Code, or imprisoned not more than 2 years or both.
8 U.S.C. § 1326(a) (2010). Section 1326(b) provides, in pertinent part:
Notwithstanding subsection (a), in the case of any alien described in such subsection...(2) whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such title, imprisoned not more than 20 years, or both;
8 U.S.C. § 1326(b)(2) (2010).
Section 1326(d) authorizes a person charged with illegal re-entry to collaterally attack a removal order the government introduces to meet its burden of proof. United States v. Arias-Ordonez , 597 F.3d 972, 975 (9th Cir. 2010) ...