United States v. Morales-Landa
| Decision Date | 18 April 2014 |
| Docket Number | Case No. 13–CR–4313–BTM. |
| Citation | 18 F.Supp.3d 1015 |
| Court | U.S. District Court — Southern District of California |
| Parties | UNITED STATES of America, Plaintiff, v. Javier MORALES–LANDA, Defendant. |
Anne Kristina Perry, U.S. Attorneys Office Southern District of California, San Diego, CA, for Plaintiff.
Joseph S. Camden, Federal Defenders of San Diego, San Diego, CA, for Defendant.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT
Defendant Javier Morales–Landa has filed a motion to dismiss the indictment. For the reasons set forth herein, the Court DENIES the motion.
Defendant Javier Morales–Landa (“Defendant”) is a citizen of Mexico without legal status in the United States. On March 22, 2010, he was charged with attempted sexual abuse of a child in violation of Utah Code section 76–5–402.1. (Gov.Ex. 2.) On the same day, he pled guilty to attempted sexual abuse of a child, a felony in the third degree. (Gov.Ex. 3, Doc. 21–1). In his supporting statement, he admitted: “On 7/1/09 at 2547 Parkcrest Drive in Salt Lake County, I touched the breast of T.M. (a female younger than age 14) to arouse my sexual desire.” (Id. at 3.)
On May 5, 2010, Defendant was served with a Notice of Intent to Issue a Final Administrative Removal Order, which included an allegation that his Utah conviction constituted an aggravated felony under 8 U.S.C. § 1101(a)(43)(A). (Def's Ex. D., Doc. 15–2.) Defendant acknowledged receipt of the Notice and did not contest the allegations therein. (Id. ) The immigration officer accordingly concluded that he was convicted of an aggravated felony, and a final removal order issued the same day. (Def's Ex. E.) Defendant was removed to Mexico the next day.
On November 5, 2013, Defendant was arrested approximately 25 yards north of the Mexican border. On December 5, 2013, he was charged by information with Attempted–Re–Entry of a Removed Alien in violation of 8 U.S.C. § 1326. On January 22, 2014, he filed a motion to dismiss the information pursuant to 8 U.S.C. § 1326(d). Defendant contends that his removal was invalid because he was not really convicted of of an aggravated felony.1 (Mot. at 5.) The Court held hearings on the motion on March 21 and April 11, 2014.
“[A]ny alien who ... has been ... deported, or removed ... and thereafter ... enters, attempts to enter, or is at any time found in, the United States” absent express consent “shall be fined under Title 18, or imprisoned not more than 2 years, or both.” 8 U.S.C. § 1326(a). An unlawfully present alien “whose removal was subsequent to a conviction for commission of an aggravated felony” is subject to a sentence of up to twenty years. Id. at § 1326(b)(2). Sexual abuse of a minor is an aggravated felony. Id. at 1101(a)(43)(A) An alien charged under § 1326 “may challenge the validity of the deportation order.” Id. at § 1326(d). To advance such a “collateral attack,” the defendant must demonstrate that (1) he exhausted all administrative remedies available to him to appeal his removal order; (2) the underlying removal proceedings improperly deprived him of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair. See, e.g., United States v. Ubaldo–Figueroa, 364 F.3d 1042, 1048 (9th Cir.2004). An underlying deportation order is “fundamentally unfair” if (1) the defendant's due process rights were violated by defects in his deportation proceeding, and (2) he suffered prejudice as a result. Id.
An alien may not collaterally attack an underlying removal order if he validly waived the right to appeal that order. United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir.2000). However, the exhaustion requirement of 8 U.S.C. § 1326(d) “cannot bar collateral review of a deportation proceeding when the waiver of right to an administrative appeal did not comport with due process.” United States v. Muro–Inclan, 249 F.3d 1180, 1183 (9th Cir.2001).
Defendant argues that he is excused from the exhaustion requirement. Although he received a form asking whether he challenged his removal, Defendant contends that the form did not provide sufficient notice and opportunity to contest the legal conclusion that a prior conviction constitutes an aggravated felony. (Mot. at 3, 6.) See Valdiviez–Hernandez v. Holder, 739 F.3d 184, 187 n. 1 (5th Cir.2013). As the government does not challenge Defendant's exhaustion argument, the Court treats it as excused.
To determine whether a state conviction constitutes an aggravated felony, courts use the “categorical approach” set forth in Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under that approach, the Court looks only to the fact of conviction and the elements of the alleged predicate offense to determine whether it satisfies the definition of the qualifying federal offense (i.e., whether it is an aggravated felony). Taylor, 495 U.S. at 602, 110 S.Ct. 2143. “[I]f the statute sweeps more broadly than the generic crime, a conviction under that law cannot count as an ACCA predicate [or an aggravated felony], even if the defendant actually committed the offense in its generic form.” Descamps v. United States, 570 U.S. ––––, 133 S.Ct. 2276, 2283–2285, 186 L.Ed.2d 438 (2013). In other words, if the state statute lacks any element of the federal offense, the mismatch ends the inquiry because “a person convicted under that statute is never convicted of the generic crime.” United States v. Gomez, 732 F.3d 971 (9th Cir.2013). Assessing whether a state statute is “overbroad” relative to the federal definition ought not be an exercise in creativity. See Gonzales v. Duenas–Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ( ); James v. United States, 550 U.S. 192, 208, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) ().
Sometimes the Court cannot determine, categorically, whether the crime of conviction constitutes an aggravated felony because the statute can be violated in multiple ways, not all of which would be aggravated felonies. That situation may arise if the state statute of conviction is “divisible,” i.e., it sets forth “multiple, alternative versions of the crime,” thereby “effectively creat[ing] several different crimes.” Descamps, 133 S.Ct. at 2284–85 (citation omitted). In that case, the Court may use the “modified categorical approach,” examining certain “approved documents” in the record to determine what form of the crime the defendant was convicted of.2 Id. at 2284.
Defendant argues his conviction for attempted sexual abuse of a child in the third degree is not an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). The Court finds that the modified categorical approach is properly applied in this case, and that Defendant's conviction was for an aggravated felony.
Where a defendant is convicted of an attempt crime, the sentencing court must determine “whether the defendant's conviction establishes that he committed the elements of the generic definition of ‘attempt’ and that the underlying offense he attempted meets the generic definition of that offense.” United States v. Gonzalez–Monterroso, 745 F.3d 1237, 1240 (9th Cir.2014) (quoting United States v. Gomez–Hernandez, 680 F.3d 1171, 1175 (9th Cir.2012) ). The Utah attempt statute provides, in pertinent part:
Utah Code § 76–4–101. Defendant does not dispute that sections (1)(a) and (b)(1) of the Utah attempt statute are identical to the federal generic definition of attempt. (Mot. at 11.) He nonetheless argues that the statute was overbroad at the time of his plea. (Mot. at 11–12.) More specifically, he argues that an intervening judicial ruling temporarily rendered the Utah statute broader than the federal definition.3
Pointing to State v. Arave, 220 P.3d 182 (Utah App.2009), Defendant argues that because solicitation was, “for the space of a couple years straddling Mr. Morales' plea,” within the ambit of the Utah attempt statute, his conviction is based on a statute that sweeps too broadly in comparison with its federal counterpart. (Mot. at 11.) In Arave, the trial court found that Mr. Arave's conduct amounted to not just solicitation, but a “substantial step” in furtherance of the crime (sodomy of a child). 220 P.3d at 185–86. Mr. Arave was thus convicted of attempted sodomy rather than solicitation. The intermediate appellate court affirmed. The Utah Supreme Court reversed, finding that Mr. Arave's conduct amounted to solicitation, and that mere solicitation is not a substantial step in furtherance of an attempt. State v. Arave, 268 P.3d 163, 169–70 (Utah 2011).
Citing J.S v. P.K. (In re Adoption of I.K.), 220 P.3d 464 (Utah 2009), Defendant argues that the 2...
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