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United States v. Perez-Garcia

United States District Court, S.D. California

March 21, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JUANPEREZ-GARCIA, Defendant.

          ORDER DENYING MOTION TO DISMISS INDICTMENT

          Roger T. Benitez, Judge

         Now before the Court is Defendant's Motion to Dismiss the Indictment. Upon review, this Court finds a valid underlying removal order. Therefore, the motion to dismiss the indictment is denied.

         I. BACKGROUND

         Perez-Garcia is charged with the crime of Attempted Reentry of a Removed Alien in violation of 8 U.S.C. § 1326(a) and (b).

         Perez-Garcia is a citizen of Mexico. He has never had lawful permanent resident status (“LPR”). He is alleged to have first entered the United States without inspection sometime in 1994. On September 26, 2016, he was allegedly arrested in the United States in Escondido, California following his release from a San Diego County jail and is now charged with being found in the United States after having been previously removed.

         Defendant says that on February 22, 2002 the immigration service issued a Notice of Intent to Issue a Final Administrative Removal Order. The Notice of Intent stated that Mr. Perez had been convicted of a violation of Cal. Penal Code § 273.5 (Willful Infliction of Corporal Injury). It charged him with removability under 8 U.S.C. § 1227(a)(2)(A)(iii), conviction for an aggravated felony (i.e., that his § 273.5 conviction was an aggravated felony under 8 U.S.C. § 1101(a)(43)(F)). “Because it is not, and he was not deportable as charged, ” argues Defendant, “the indictment in this case must be dismissed.” In response, the Government describes Defendant's criminal history and history of removals:

~ On February 15, 2000, and May 3, 2000, Defendant was convicted of two misdemeanor Inflict Corporal Injury on Spouse/Cohabitant, Cal. Penal Code § 273.5(a) offenses.
~ On May 10, 2000, Defendant was convicted of Possession of Cocaine, in violation of Cal. Health & Safety Code § 11350(A) and sentenced to 365 days' jail and 36 months' probation.
~ On March 8, 2001, Defendant's probation was revoked and he was sentenced to 2 years prison.
~ On March 8, 200 L Defendant was convicted of felony Inflict Corporal Injury on Spouse/Cohabitant Resulting in Traumatic Condition, Cal. Penal Code § 273.5(a) and sentenced to 2 years' prison.
~ Following his prison sentence. Defendant was physically removed to Mexico via the Calexico Port of Entry on March 22, 2002.
~ On September 3, 2002, Defendant was convicted of Second Degree Burglary, Cal. Penal Code § 459, and sentenced to 16 months' prison.
~ After his sentence, Defendant was placed in reinstatement removal proceedings and physically removed from the United States via the San Ysidro Port of Entry on May 30, 2003.
~ On June 9, 2004, Defendant was arrested and charged with attempted murder, Cal. Penal Code ยง 187(a). On December 2, 2004, Defendant pled no contest and was sentenced to 5 years' prison and an additional 3 years' prison for the domestic violence great ...

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