United States v. Aguilar-Castaneda
| Decision Date | 25 June 2019 |
| Docket Number | Case No. 18-CR-00427-LHK-1 |
| Court | U.S. District Court — Northern District of California |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JUAN AGUILAR-CASTANEDA, Defendant. |
Before the Court is Defendant Juan Aguilar-Castaneda's motion to dismiss Plaintiff United States' ("government") indictment for illegal reentry following deportation in violation of 8 U.S.C. § 1326. ECF No. 12 ("Mot.").
In 2000, Defendant pleaded guilty to one count of Cal. Penal Code § 261.5(c), unlawful sexual intercourse with person under 18. Defendant was placed in administrative removal proceedings because his conviction was classified as an aggravated felony. Administrative removal proceedings, which are limited to noncitizens convicted of an aggravated felony who are not permanent residents, do not require a hearing before an Immigration Judge. 8 U.S.C. § 1228(b). In 2000, an immigration officer ordered Defendant removed from the United States.
Now, Defendant asserts that he was not informed of his right to seek judicial view of the immigration officer's decision that his 2000 conviction was an aggravated felony. Defendant also argues that the 2000 conviction was not an aggravated felony. Having considered the filings of the parties, the relevant law, and the record in this case, the Court GRANTS Defendant's motion to dismiss the indictment with prejudice.
On January 7, 2000, before the California Superior Court of Monterey County, Defendant pleaded guilty to a felony violation of Cal. Penal Code § 261.5(c), unlawful sexual intercourse with person under 18, otherwise known as statutory rape. ECF No. 16-1, Ex. A; ECF No. 16 at 2 ("Opp.")1; United States v. Gonzalez-Aparicio, 663 F.3d 419, 429 (9th Cir. 2011). Defendant was sentenced to 185 days in jail and 36 months of probation. Opp. at 2; Mot. at 2.
At an unspecified point in time, Defendant was transferred into the custody of the Immigration and Naturalization Service. ECF No. 13-1, Ex. A. On July 6, 2000, Defendant was served with a Notice of Intent to Issue a Final Administrative Removal Order ("Notice of Intent"). Id. The Notice of Intent stated that Defendant entered the United States on an unknown date in 1987 without inspection by an immigration officer, and that on January 7, 2000, Defendant was convicted in the Superior Court of Monterey County for unlawful sexual intercourse with a minor in violation of Cal. Penal Code § 261.5(c). Id. Moreover, the Notice of Intent also stated that Defendant was deportable without appearing before an Immigration Judge because he was convicted of an aggravated felony "as defined in section 101(a)(43) of the [Immigration and Nationality] Act," codified at 8 U.S.C. § 1101(a)(43).
The government contends that Defendant's conviction under Cal. Penal Code § 261.5(c) is an aggravated felony because a conviction under § 261.5(c) constitutes "sexual abuse of a minor." Opp. at 3. "[S]exual abuse of a minor" falls under the statutory definition of "aggravated felony"pursuant to 8 U.S.C. § 1101(a)(43)(A). The government also makes a cursory argument that Defendant's conviction might constitute a "crime of violence," which is also an aggravated felony pursuant to 8 U.S.C. § 1101(a)(43)(F). Opp. at 4.
As shown below, the Notice of Intent contained a section called "Your Rights and Responsibilities." ECF No. 13-1, Ex. A. The section disclosed that Defendant had the right to, inter alia, "rebut the charges stated above (with supporting evidence)" and seek judicial review by filing a petition for review "within 14 calendar days after the date" the final order of removal is issued. Id.
The Notice of Intent also contained four other sections. The first section was entitled "Certificate of Service." The Certificate of Service section stated: The Certificate of Service section was completed and signed by an immigration officer. The Certificate of Service section also noted that "I explained and/or served this Notice of Intent to the alien in the English language." Defendant was served with the Notice of Intent on July 6, 2000. Id.
The second section was an acknowledgement of the receipt of the Notice of Intent. The acknowledgement section stated: "I acknowledge that I have received this Notice of Intent to Issue a Final Administrative Removal Order." This second section contains Defendant's signature acknowledging receipt of the Notice of Intent, and was dated July 6, 2000 at 12:10 p.m. Id.
As shown below, the third section was entitled "I Wish to Contest," with 4 checkbox options for grounds on which Defendant could contest his deportability. Id. The 4 checkbox options stated: (1) "I am a citizen or national of the United States"; (2) "I am a lawful permanent resident of the United States"; (3) "I was not convicted for the criminal offense described in allegation number 6 above"; and (4) "I am attaching documents in support of my rebuttal and request for further review." Id. The "I Wish to Contest" section was not completed. Id.
I WISH TO CONTEST:
I contest my deportability because: (Attach any supporting documentation):
__________
__________
__________
As shown below, the fourth section was entitled "I Do Not Wish to Contest." This fourth section stated:
I admit the allegations and charge in this Notice of Intent. I admit that I am deportable and acknowledge that I am not eligible for any form of relief from removal. I waive my right to rebut and contest the above charges and my right to file a petition for review of the Final Removal Order. I wish to be deported to Mexico. I also waive the 14-day period of execution of the Final Removal Order.
Id. Defendant signed the "I Do Not Wish to Contest" section on July 6, 2000.
I DO NOT WISH TO CONTEST:
[×] I admit the allegations and charge in this Notice of Intent. I admit that I am deportable and acknowledge that I am not eligible for any form of relief from removal. I waive my right to rebut and contest the above charges and my right to file a petition for review of the Final Removal Order. I wish to be deported to ___
[×] I also waive the 14-day period of execution of the Final Removal Order.
__________
(Signature of Respondent)
__________
(Printed Name of Respondent)
__________
(Date and Time)
__________
(Signature of Witness)
__________
(Printed Name of Witness)
__________
(Date and Time)
On July 6, 2000, Defendant was served with a final administrative removal order. ECF No. 13-1, Ex. B. On July 7, 2000, Defendant was deported to Mexico, departing the United Statesby foot. ECF No. 13-1, Ex. C.
On September 6, 2018, a grand jury in the Northern District of California returned an indictment, charging Defendant with one count of illegal reentry following deportation under 8 U.S.C. § 1326. ECF No. 1. On March 27, 2019, Defendant filed the instant motion to dismiss the indictment. ECF No. 12 ("Mot."). The government filed its opposition on April 26, 2019. ECF No. 16 ("Opp."). Defendant filed his reply on May 10, 2019. ECF No. 18 ("Reply").
Under Federal Rule of Criminal Procedure 12(b)(3)(B)(v), a defendant may move to dismiss an indictment on the ground that the indictment "fail[s] to state an offense." In considering a motion to dismiss an indictment, a court must accept the allegations in the indictment as true and "analyz[e] whether a cognizable offense has been charged." United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002). "In ruling on a pre-trial motion to dismiss an indictment for failure to state an offense, the district court is bound by the four corners of the indictment." Id. A motion to dismiss an indictment can be determined before trial "if it involves questions of law rather than fact." United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir.), cert. denied, 478 U.S. 1007 (1986).
"For 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...
To continue reading
Request your trial