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United States v. Mendoza

United States District Court, N.D. California

April 27, 2017





         Defendant is charged with four violations of the terms of his supervised release. After an evidentiary hearing, this order finds defendant Guilty of Charges One, Two, and Three, and Not Guilty of Charge Four.


         Here are the findings of the Court after an evidentiary hearing. In 2010, defendant Rafael Valencia Mendoza, then a lawful permanent resident of the United States, pled guilty to possession with intent to distribute of thirty-seven pounds of marijuana. He received a sentence of ten months in custody followed by three years of supervised release (Exh. 1; Exh. E).

         On July 22, 2011, the Bureau of Prisons released him from custody and transferred him to Immigrations and Customs Enforcement custody for removal proceedings. Defendant had counsel at his removal proceedings (Tr. at 23-24). In December 2011, an immigration court in Arizona ordered him removed to Mexico, citing the conviction herein as clear and convincing evidence of his removability (Exhs. 2-3). Defendant appealed.

         In March 2012, while he remained in ICE custody pending his appeal, defendant sent a letter to the probation office stating his whereabouts and expressing his intention “to comply with [his] probation or parole requirements” (Exh. 24). Probation responded to defendant's letter advising that his term of supervised release will “expire on July 21, 2014” (Exh. 25).

         Meanwhile, defendant's appeals at the Board of Immigration Appeals and then at the court of appeals were unsuccessful (Exhs. 26-27). He was then deported to Mexico on August 18, 2012 (Exh. 5).

         In March 2013, in California, Sheriff's Deputy Orall Massey stopped defendant for driving with a cracked windshield. At that traffic stop, Deputy Massey informed defendant his driving privileges had been suspended (Tr. at 56). One week later, in April, Deputy Massey encountered defendant again and arrested him for driving with a suspended license, for which he had already been given notice (Exh. 18).

         Defendant resolved the new criminal charge by showing “proof of correction” and paying a $25 fine. The criminal charge was vacated (Exh. 19).

         In May 2013, our probation office filed a Form 12 charging defendant with a violation of the terms of supervised release based on that arrest. The Form 12 also charged defendant with failing to contact his probation officer within 72 hours of reentry and with illegal reentry (Dkt. No. 23).

         In May 2016, ICE arrested defendant in Ukiah (Tr. 85-86). ICE Officer Christopher Howe interviewed defendant, after advising him of his rights in Spanish (defendant's first language) and obtaining a waiver. Defendant admitted that he had reentered the United States in 2013 through Arizona by foot. He further stated that he was a citizen of Mexico and did not have permission to reenter the United States (Tr. 87-88; Exh. 6). Defendant was then deported on May 17, 2016 (Exh. 7).

         In November 2016, defendant was arrested at the border in Texas. Defendant claimed to be a lawful permanent resident and presented an invalid green card. An officer referred him to secondary inspection, where several officers discovered he had previously been deported. Defendant admitted he had been deported and that he knew he could not legally reenter as a lawful permanent resident after being deported (Tr. 93-96; Exhs. 8-9).

         Defendant was charged with attempting to enter the United States by a willfully false statement in violation of 18 U.S.C. 1325(a)(3) in federal court in Texas. He pled guilty and received a custodial sentence of 180 days (Exhs. 11-12).

         In December 2017, while still serving his sentence imposed in Texas, the defendant appeared here on the charges alleged in the May 2013 Form 12. In January 2017, the government amended the Form 12 to charge defendant with illegal reentry based on the events in November 2016, but later amended that charge to allege improper reentry (see Dkt. Nos. 29, 44).

         We held a revocation hearing in March 2016. This order follows post-hearing briefing and oral argument.


         Defendant is charged with four violation of the terms of supervised release: (1) failing to report to the probation office within 72 hours of reentry, (2) commission of a federal crime (illegal reentry in violation of 8 U.S.C. 1326), (3) commission of a state crime (driving with a suspended license in violation of California Vehicle Code § 14601.1(a)), and ...

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