United States District Court, D. Nevada
before the court is defendant Pablo Guzman-Hernandez'
(“Guzman-Hernandez”) motion to dismiss. (ECF No.
21). The government filed a response. (ECF No. 28).
Guzman-Hernandez did not file a reply and the time to do so
February 25, 2005, Guzman-Hernandez was removed from the
United States by an administrative removal order following
his conviction for possession for sale of a controlled
substance (methamphetamine), in violation of California
Health and Safety Code (“CHSC”) § 11378.
(ECF Nos. 21, 28). From July 2011 to June 2014,
Guzman-Hernandez was removed from the United States on three
separate occasions by a reinstatement of the original removal
order. Id. On July 29, 2014, Guzman-Hernandez was
removed from the United States for a fifth time pursuant to
an expedited removal order. Id.
August 21, 2018, Immigration and Customs Enforcement
(“ICE”) found Guzman-Hernandez at the Las Vegas
City Detention Center following his arrest for buy/possess
stolen property. (ECF No. 28). ICE issued a detainer and
placed Guzman-Hernandez into federal custody. Id.
September 19, 2018, a grand jury indicted Guzman-Hernandez on
a single count of deported alien found unlawfully in the
United States, in violation of 8 U.S.C. § 1326. (ECF No.
1). Now, Guzman-Hernandez moves to dismiss the indictment.
(ECF No. 21).
Rule of Criminal Procedure 12(b) provides that “[a]
party may raise by pretrial motion any defense, objection, or
request that the court can determine without a trial on the
merits.” Fed. R. Crim. P. 12(b)(1). A pretrial motion
to dismiss is not the proper vehicle for a summary trial on
the evidence. United States v. Boren, 278 F.3d 911,
914 (9th Cir. 2002). United States v. Jensen, 93
F.3d 667, 669 (9th Cir. 1996). Rather, courts adjudicate Rule
12(b) motions only when they involve questions of law.
United States v. Schulman, 817 F.2d 1355, 1358 (9th
ruling on a pretrial motion to dismiss, “the district
court is bound by the four corners of the indictment.”
United States v. Lyle, 742 F.3d 434, 436 (9th Cir.
2014). “If the pretrial claim is substantially founded
upon and intertwined with evidence concerning the alleged
offense, the motion falls within the province of the ultimate
finder of fact and must be deferred.” United States
v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th
Cir. 1986) (quotes and citation omitted). A district court
can, however, make preliminary findings of fact necessary to
decide questions of law when doing so does not resolve issues
properly left to the fact-finder. Id
argues that the court should dismiss the indictment because
the underlying deportation orders are invalid. (ECF No. 21).
The court disagrees.
a defendant to be convicted of illegal reentry under 8 U.S.C.
§ 1326, the government must establish that the defendant
left the United States under order of exclusion, deportation,
or removal, and then illegally reentered.” United
States v. Raya-Vaca, 771 F.3d 1195, 1201 (9th Cir. 2014)
(internal quotation marks and citation omitted). “A
defendant charged under § 1326 has a due process right
‘to collaterally attack his removal order because the
removal order serves as a predicate element of his
conviction.'” Id. (quoting United
States v Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir.
that a prior deportation is an improper basis for an illegal
reentry charge under § 1326, “a defendant must
demonstrate that (1) he exhausted the administrative remedies
available for seeking relief from the predicate removal
order; (2) the deportation proceedings ‘improperly
deprived [him] of the opportunity for judicial review';
and (3) the removal order was ‘fundamentally
unfair.'” Raya-Vaca, 771 F.3d at 1201
(quoting 8 U.S.C. § 1326(d)) (brackets in original).
“To satisfy the third prong . . . the defendant bears
the burden of establishing both that the deportation
proceeding violated his due process rights and that the
violation caused prejudice.” Id. (internal
quotes, citation, and brackets omitted).
argues that his removal order was fundamentally unfair
because it improperly treated a violation of CHSC §
11378 as an aggravated felony for immigration purposes. (ECF
No. 21). Guzman-Hernandez' contention is inconsistent
with mandatory authority from the Ninth Circuit.
U.S.C. § 1227(a)(2)(A)(iii) authorizes removal if an
alien has committed an aggravated felony. In determining
whether a state offense is an aggravated felony, courts
initially use the categorical approach. See Moncrieffe v.
Holder, 569 U.S. 184, 190-91 (2013). A state offense is
an aggravated felony under the categorical approach when its
elements are the same as, or are narrower than, the elements
of a generic federal crime. Descamps v. United
States, 570 U.S. 254, 257 (2013). When a statute
contains several crimes, court employ the ...