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United States of America v. Jose Alvarado-Pineda

September 25, 2012

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
JOSE ALVARADO-PINEDA, DEFENDANT.



The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court

ORDER DENYING MOTION TO DISMISS INDICTMENT

Defendant Jose Alvarado-Pineda ("Defendant") has filed a motion to dismiss the indictment pursuant to 8 U.S.C. § 1326(d). For the reasons discussed below, Defendant's motion is DENIED.

I. FACTUAL BACKGROUND

On February 15, 2012, a grand jury in this district returned an indictment, charging Defendant with one count of being a deported alien found in the United States in violation of 8 U.S.C. § 1326(a) and (b).

On March 9, 2004, an information was filed in Washington Superior Court, charging Defendant with attempted residential burglary in violation of Wash. Rev. Code §§ 9A.28.020 and 9A.52.025. (Gov't Ex. 1.) Defendant pled guilty and was sentenced to 2.25 months in prison. (Gov't Ex. 2.)

On July 27, 2004, an information was filed in Washington Superior Court, charging Defendant with robbery in the second degree in violation of Wash. Rev. Code §§ 9A.56.210 (Count I) and 9A.56.190 as well as assault in the third degree in violation of Wash. Rev. Code § 9A.36.031(1)(g) (Count II). Defendant pled guilty to both counts and was sentenced to 14 months on Count I and 6 months on Count II. (Gov't Ex. 4.)

On May 10, 2005, Defendant was served with a Notice of Intent to Issue a Final Administrative Removal Order. (Def. Ex. B.) The Notice charged Defendant with being deportable under § 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), "because you have been convicted of an aggravated felony as defined in section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F), a law relating to a crime of violence." On May 10, 2005, Defendant was ordered removed by a Final Administrative Removal Order. (Def. Ex. A.) The Final Administrative Removal Order provided that Defendant was deportable as an alien convicted of an aggravated felony pursuant to § 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii). On May 13, 2005, Defendant was removed from the United States to Mexico by foot via the San Ysidro Port of Entry.

On June 23, 2005, Defendant was arrested in Washington for a probation violation. (Gov't Ex. 7 at 4.) On July 12, 2005, Defendant was served with a Notice of Intent to Issue a Final Administrative Removal Order. (Def. Ex. D.) The Notice charged him as being deportable under § 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony. (Id.)*fn1 On the form, Defendant indicated that he admitted the allegations and waived his right to contest the charges. (Id.) On July 20, 2005, a Final Administrative Removal Order was served on Defendant. (Def. Ex. C.)*fn2

On July 22, 2005, an information was filed in the Western District of Washington, charging Defendant with a misdemeanor and a felony count of illegal entry in violation of 8 U.S.C. § 1325. (Gov't Ex. 8.) Defendant pled guilty to the two charges and was sentenced to 12 months and 1 day in prison. (Gov't Ex. 9.)

On June 19, 2006, Defendant was served with a Notice to Appear. (Def. Ex. F.) The Notice to Appear charged Defendant with being subject to removal pursuant to INA § 212(a)(6)(A)(i) (for being an alien present in the United States without being admitted or paroled) and § 212(a)(2)(A)(i)(I) (for having committed a crime involving moral turpitude). That same day, Defendant signed a Stipulated Request for Order. (Def. Ex. G.) The Stipulated Request provided that Defendant admitted the factual allegations in the Notice to Appear, conceded that he was deportable as charged, waived his right to apply for relief, and agreed to accept a written order for his removal as a final disposition of the proceedings. (Id.) On June 27, 2006, an immigration judge ordered that Defendant be removed. (Def. Ex. E.) On July 1, 2006, Defendant was removed from the United States to Mexico by foot via the San Ysidro Port of Entry. (Gov't Ex. 10.)

Subsequently, Defendant's June 27, 2006 removal order was reinstated three more times, on October 26, 2006, July 2, 2010, and December 30, 2011. (Def. Exs. H, I, and J.)

On December 20, 2006, an indictment was filed in this district in Case No. 06cr2666-H, charging Defendant with being a deported alien found in the United States in violation of 8 U.S.C. § 1326. On January 30, 2007, a Superseding Information was filed, charging Defendant with two felony counts of illegal entry in violation of 8 U.S.C. § 1325. That same day, a Plea Agreement was filed. (Gov't Ex. 14.) In the Plea Agreement, Defendant agreed to plead guilty to the two charges in the Superseding Information. Defendant also agreed to an order of removal from the United States and waived "any right to appeal, reopen, or challenge the removal order." (Id. at 10.) Defendant was sentenced to a 48-month term of imprisonment.

On July 2, 2010, Defendant indicated on a Notice of Intent/Decision to Reinstate Prior Order that he did not wish to contest the reinstatement of his prior removal order. (Def. Ex. I.) Defendant was removed from the United States to Mexico by ...


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