United States District Court, S.D. California
WILLIAM Q. HAYES, District Judge
The matter before the Court is the motion to dismiss the indictment (ECF No. 14) filed by Defendant Rigoberto Pardo-Ruelas.
On June 20, 1997, Defendant entered a plea of guilty in state court to the following three felony charges: Count 2 - Sell Explosive device in violation of California Penal Code § 12303.6; Count 5 - Possession for Sale of Controlled substance in violation of California Penal Code § 11378; and Count 8 - Possession with intent to manufacture methamphetamine in violation of California Penal Code § 11383. Defendant was sentenced to four years in prison on Count 2, eight months in prison on Count 5, and fourteen months on Court 8, to run consecutively. The Information shows that the Charge in Count 5 pursuant to California Penal Code § 11378 charged that Defendant "did wilfully and unlawfully possess for sale a controlled substance, to wit, AMPHETAMINE." (ECF No. 17-1 at 12).
On September 25, 2000, Defendant was served with a Notice to Appear alleging that he was subject to removal from the United States. (ECF No. 15-1). The Notice to Appear alleged:
You are not a citizen or national of the United States. You are a native of Mexico and a citizen of Mexico.
You entered the United States at or near Calexico, California on or about January 10, 1981 as a Lawful Permanent Resident.
You were on June 20, 1997, convicted in the Superior Court of the State of California, in and for the County of Riverside, for the offense of Sell/Etc Destructive Device, in violation of Section 12303.6 of the California Penal Code.
For that offense, you were sentenced to confinement for a period of (4) years.
You were on June 20, 1997, convicted in the Superior Court of the State of California, in and for the County of Riverside, for the offense of Possession for Sale of a Controlled Substance, in violation of Section 11378 of the California Health and Safety Code.
For that offense, you were sentenced to confinement for a period of (8) months.
(ECF No.15-1 at 3). The Notice to Appear charged that the Defendant was subject to removal on the grounds that "you have been convicted of a violation of... any law... relating to a controlled substance (as defined in section 102 of the Controlled Substances Act [21 U.S.C. 802], other than a single offense involving possession for one's own use of 30 grams or less of marijuana." Id.
On October 11, 2000, Defendant appeared before an Immigration Judge at a hearing. The Immigration Judge reviewed Defendant's 1997 conviction for a controlled substance offense. ...