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United States v. Aguero-Cadenas

United States District Court, D. Nevada

July 20, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ISMAEL AQUERO-CADENAS, Defendant.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         The grand jury indicted Defendant Ismael Aguero-Cadenas on one count of unlawful re-entry in violation of 8 U.S.C. § 1326(a). (ECF No. 1.) Before the Court is Defendant's motion to dismiss the indictment (“Motion”) (ECF No. 20.) This Court's decision chiefly hinges on whether Defendant's 2016 conviction under NRS § 453.337 for possession of a controlled substance for the purpose of sale (ECF No. 20-3) constitutes either a controlled substance offense or an aggravated felony pursuant to federal law. Having reviewed the parties' briefs (ECF Nos. 20, 23, 28) and the Government's supplemental brief (ECF No. 26), the Court finds that Defendant's prior conviction is neither a controlled substance offense nor an aggravated felony under federal law.

         Therefore, in conjunction with the reasons stated below, the Court finds that the predicate removal order underlying the unlawful re-entry charge was invalid and will grant Defendant's Motion (ECF No. 20).

         II. RELEVANT BACKGROUND

         Defendant was born in Mexico, but became a legal permanent resident of the United States on November 19, 2001, before his twenty-first birthday. (ECF Nos. 20-4, 20-7; ECF No. 20-9 at 2.) In November 2014, Defendant was arrested on state drug and theft charges. (ECF No. 20-3.) He pleaded guilty to possession of a controlled substance for the purpose of sale in violation of NRS § 453.337, and misdemeanor conspiracy. (Id.) In 2016, the sentencing court suspended his sentences for each count, and placed him on probation. (Id. at 3.) Defendant's probation officer reported him to Immigration and Customs Enforcement (ICE). (ECF No. 20-9 at 3; ECF No. 20 at 3.)

         ICE arrested and charged Defendant as removable under § 237(a)(2)(B)(i) of the Immigration and Nationality Act (“INA”) as an alien convicted of a controlled substance offense based on the 2016 conviction. (ECF Nos. 20-1, 20-9; ECF No. 23-3 at 2.) It is uncontested that the government ultimately removed Defendant for an “aggravated felony offense” under INA § 237(a)(2)(A)(iii) on the basis of the same conviction (ECF No. 20-2 at 2.)[1] Albeit not expressly stated in either the deportation charge or predicate removal order, it is uncontested that the “aggravated felony offense” “must have been as a ‘drug trafficking offense' under 8 U.S.C. § 1101(a)(43)(B), the only aggravated offense subsection under which [Defendant's] conviction could possibly qualify.” (ECF No. 20 at 3-4; ECF Nos. 20-1, 20-2.)

         During Defendant's removal proceedings, the immigration judge (“IJ”) failed to apprise Defendant of any relief from removal. (ECF No. 29 (manual filing).) After his removal, Defendant re-entered the United States which led to his indictment in this case. (ECF No. 1.)

         III. DISCUSSION

         A. Legal Framework for Challenging a Predicate Removal Order

         To obtain a conviction for illegal re-entry pursuant to 8 U.S.C. § 1326(a), the government must establish that Defendant sustained a valid removal before the alleged re-entry. See United States v. Cisneros-Rodriguez, 813 F.3d 748, 755 (9th Cir. 2015). A defendant charged with illegal re-entry under § 1326(a) “has a Fifth Amendment right to collaterally attack his removal order because the removal order serves as a predicate element of his conviction.” United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004). A defendant may successfully challenge a predicate removal order under 8 U.S.C. § 1326(d) by showing: (1) that he exhausted all administrative remedies available to him to appeal his removal order; (2) that the underlying removal proceedings at which the order was issued improperly deprived him of the opportunity for judicial review; and (3) that the entry of the order is fundamentally unfair.

         B. Legal Framework for Determining Whether a State Conviction Qualifies As a Predicate Offense for Removal

         Courts typically apply a “three-step analysis” for determining whether a prior conviction under state law, here NRS § 453.337, qualifies as predicate drug trafficking offense under federal law. United States v. Martinez-Lopez, 864 F.3d 1034, 1038 (9th Cir. 2017) (en banc) (citation omitted). Typically a court first asks “whether [NRS § 453.337] is a categorical match with a federal drug trafficking offense. United States v. Figueroa-Beltran, 892 F.3d 997, 1001-02 (2018). “If § 453.337 is not a categorical match, we proceed to the second step of the analysis.” Id. at 1002. The step-two analysis is whether § 453.337 is divisible or indivisible. Lopez-Valencia v. Lynch, 798 F.3d 863, 867-68 (9th Cir. 2015) (citing Medina-Lara v. Holder, 771 F.3d 1106, 1112 (9th Cir. 2014)). A statute is divisible “[w]hen [it] lists elements in the alternative, and thereby define[s] multiple crimes.” Mathis v. United States, 136 S.Ct. 2243, 2249 (2016); see also Id. at 2256. A statute is indivisible when it sets out merely alternative means of satisfying one (or more) of its elements. Id. at 2248. Where “(1) a state court decision definitively answers the question, or (2) the statute on its face resolves the issue, ” with a conclusion that the statute is indivisible, the Court's analysis ends. Figueroa-Beltran, 892 F.3d. 1002 (citations, alterations, and internal quotation marks omitted). This is because “a conviction under an indivisible, overbroad statute can never serve as a predicate offense.” Medina-Lara, 771 F.3d at 1112 (citing Descamps v. U.S., 570 U.S. 254, 256 (2013)).

         If the statute and the state law fail to provide clear answers, the Court may “peek” at the record documents “for the sole and limited purpose of determining whether [the listed items are] element[s] of the offense.” Mathis, 136 S.Ct. at 2256-57. “Only if the answer is yes can the court make further use of the materials [in the record].” Id. at 2257; see also Figueroa-Beltran, 892 F.3d at 1004 (citing Mathis, 136 S.Ct. at 2256-57 and n.7) (“If [the court] cannot readily discern the nature of the statute from these sources, [it] may further look to the record documents-indictments, jury instructions, plea colloquies and plea agreements-for guidance.”) (emphasis added). Where the peeked at materials do not “speak plainly” on the issue, the “demand for ...


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