18 F.Supp.3d 1015 (S.D.Cal. 2014), 13-CR-4313-BTM, United States v. Morales-Landa

Docket Nº13-CR-4313-BTM
Citation18 F.Supp.3d 1015
Opinion JudgeBARRY TED MOSKOWITZ, Chief United States District Judge.
Party NameUNITED STATES OF AMERICA, Plaintiff, v. JAVIER MORALES-LANDA, Defendant
AttorneyNo. 13-CR-4313-BTM For Javier Morales-Landa, Defendant: Joseph S. Camden, LEAD ATTORNEY, Federal Defenders of San Diego, San Diego, CA. For USA, Plaintiff: Anne Kristina Perry, LEAD ATTORNEY, U S Attorneys Office Southern District of California, Criminal Division, San Diego, CA.
Case DateApril 18, 2014
CourtUnited States District Courts, 9th Circuit, Southern District of California

Page 1015

18 F.Supp.3d 1015 (S.D.Cal. 2014)

UNITED STATES OF AMERICA, Plaintiff,

v.

JAVIER MORALES-LANDA, Defendant

No. 13-CR-4313-BTM

United States District Court, S.D. California

April 18, 2014

Page 1016

For Javier Morales-Landa, Defendant: Joseph S. Camden, LEAD ATTORNEY, Federal Defenders of San Diego, San Diego, CA.

For USA, Plaintiff: Anne Kristina Perry, LEAD ATTORNEY, U S Attorneys Office Southern District of California, Criminal Division, San Diego, CA.

OPINION

Page 1017

ORDER DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT

BARRY TED MOSKOWITZ, Chief United States District Judge.

Defendant Javier Morales-Landa has filed a motion to dismiss the indictment. For the reasons set forth herein, the Court DENIES the motion.

I. BACKGROUND

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.

Page 1018

II. LEGAL FRAMEWORK

A. Collateral Attack Under 8 U.S.C. § 1326

" [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, 731 F.3d 396, 2013 WL 6230973, *2 n.1 (5th Cir. 2013). As the government does not challenge Defendant's exhaustion argument, the Court treats it as excused.

B. The Categorical Approach

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. " [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

Page 1019

683, (2007) (" [T]o find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal...

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1 practice notes
  • United States v. Alarcon-Garcia, 052118 AZDC, CR-17-01693-001-PHX-DGC
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Arizona
    • 21 Mayo 2018
    ...confirms that he was “a citizen of Mexico without legal status in the United States, ” United States v. Morales-Landa, 18 F.Supp.3d 1015, 1017 (S.D. Cal. District courts in this circuit have also applied the rule to non-LPR defendants. See, e.g., United States v. Ga......
1 cases
  • United States v. Alarcon-Garcia, 052118 AZDC, CR-17-01693-001-PHX-DGC
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Arizona
    • 21 Mayo 2018
    ...confirms that he was “a citizen of Mexico without legal status in the United States, ” United States v. Morales-Landa, 18 F.Supp.3d 1015, 1017 (S.D. Cal. District courts in this circuit have also applied the rule to non-LPR defendants. See, e.g., United States v. Ga......