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United States of America v. Roberto Francisco Ramos-Perez

November 10, 2011

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
ROBERTO FRANCISCO RAMOS-PEREZ, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the motion to dismiss the indictment due to invalid deportation filed by the Defendant Roberto Francisco Ramos-Perez. (ECF No. 11).

BACKGROUND FACTS

Defendant was born in Jocotepec, Mexico in 1972. On December 28, 1976, Defendant received an immigrant visa from the American Consulate in Guadalajara, Mexico. On January 7, 1977, Defendant was admitted into the United States using the immigrant visa at the San Ysidro Port of Entry. Defendant subsequently became a lawful permanent resident.

In 1990, Defendant was arrested and charged with assault with a deadly weapon in violation of Cal. Penal Code § 245(a)(1), with an enhancement for inflicting great bodily injury pursuant to § 12022.7. On November 21, 1991, the jury returned a verdict of guilty to the § 245(a)(1) charge and made a special finding as to the § 12022.7 enhancement.

On November 21, 1991, Defendant entered guilty pleas to charges of taking a vehicle without consent in violation of Cal. Vehicle Code § 10851(a) and to receiving stolen property in violation of Cal Penal Code § 496. These charges occurred on a different date from the assault with a deadly weapon charges. Defendant was sentenced to three years in prison for the § 245(a)(1) conviction, with a three year consecutive sentence for the inflicting great bodily injury under § 12022.7, for a total of six years in prison. Defendant was sentenced to an eight month consecutive sentence for the § 1851(a) conviction and a stayed sentence for the § 496 conviction.

On March 6, 2009, Defendant was convicted of grand theft money/property, in violation of Cal Penal Code § 487. Defendant was sentenced to 20 days in jail and two years probation.

On February 10, 2010, Defendant applied for entry into the United States at the San Francisco Port of Entry.

On April 28, 2010, the Immigration and Customs Enforcement issued a Notice to Appear for removal proceedings to the Defendant. The Notice to Appear stated:

1. You are not a citizen or national of the United States;

2. You are a citizen of MEXICO and a National of Mexico;

3. On January 7, 1977, you were granted Lawful Permanent Residence to the United States...;

4. On or about November 21, 1991, in Superior Court of California, County of Contra Costa, you were found GUILTY BY JURY of Assault with Deadly Weapon, in violation of Penal Code Section 245(a)(1), a felony. For this offense you were sentenced to three (3) years in jail;

5. On or about November 21, 1991, in Superior Court of California, County of Contra Costa, you were convicted of Driving Car without Consent, in violation of Penal Code Section 10851(a), a MISDEMEANOR. For this offense you were sentenced to eight (8) months in jail;

6. On or about November 21, 1991, in Superior Court of California, County of Contra Costa, you were convicted of Receiving Stolen Property, in violation ...


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