United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE
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
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).
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.)
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.) 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.)
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.)
Legal Framework for Challenging a Predicate Removal
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.
Legal Framework for Determining Whether a State Conviction
Qualifies As a Predicate Offense for Removal
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)).
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