United States District Court, N.D. California
FINDINGS OF FACT AND CONCLUSIONS OF LAW
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE
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.
OF FINDINGS OF FACT
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.
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.
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).
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
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).
resolved the new criminal charge by showing “proof of
correction” and paying a $25 fine. The criminal charge
was vacated (Exh. 19).
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).
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
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;
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).
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).
a revocation hearing in March 2016. This order follows
post-hearing briefing and oral argument.
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)),