United States v. Lopez-Collazo

• Decision Date: 11 May 2015
• Docket Number: Crim. Action No. ELH–14–00486.
• Citation: 105 F.Supp.3d 497
• Parties: UNITED STATES of America, v. Agustin LOPEZ–COLLAZO, a/k/a Agustin Martinez–Lopez, a/k/a Agustin Lopez, Defendant.
• Court: U.S. District Court — District of Maryland

105 F.Supp.3d 497

UNITED STATES of America,

v.Agustin LOPEZ–COLLAZO, a/k/a Agustin Martinez–Lopez, a/k/a Agustin Lopez, Defendant.

Crim. Action No. ELH–14–00486.

United States District Court, D. Maryland.

Signed May 11, 2015.

Rachel Yasser, Office of the United States Attorney, Baltimore, MD, for United States of America.

MEMORANDUM OPINION

ELLEN LIPTON HOLLANDER, District Judge.

In October 2014, a federal grand jury returned a one-count indictment against Agustin Lopez–Collazo, charging him with illegal reentry into the United States, without consent, after having been previously removed from the country following conviction of an aggravated felony, in violation of 8 U.S.C. § 1326(a)& (b)(2). ECF 1. Pursuant to 8 U.S.C. § 1326(d), Lopez–Collazo filed a Motion to Dismiss the Indictment, ECF 14 (“Motion” or “Motion to Dismiss”), with exhibits. In the Motion, which is a collateral attack on the prior order of removal, defendant maintains that he can establish the three elements required by 8 U.S.C. § 1326(d).

The Government opposes the Motion, ECF 24 (“Response”) and has submitted exhibits. Defendant has replied. ECF 25 (“Reply”). And, with the consent of the Court, the Government supplemented its opposition to the Motion, ECF 36 (“Supplemental Response”), to which defendant responded. ECF 37 (“Supplemental Reply”).

In addition, defendant has filed a Motion to Suppress Tangible and Derivative Evidence and Statements, ECF 13 (“Motion to Suppress”). The Government responded in ECF 24, and defendant replied. ECF 25.

The Court held an evidentiary motions hearing on April 23, 2015, seeECF 39, and heard oral argument on April 30, 2015. SeeECF 43.¹For the reasons that follow, I will grant the Motion to Dismiss. And, because I will grant defendant's Motion to Dismiss, I need not decide defendant's Motion to Suppress.

I. Factual Background ²

A. Defendant's Entry to the United States & Maryland State Convictions

Lopez–Collazo was born in 1982 (ECF 24–5 at 2, 20) and is a citizen of Mexico. Defendant's native language is Spanish, ECF 25–5 at 3, and he has an eighth grade education. SeeECF 24–4 at 6–7. Lopez–Collazo first entered the United States approximately sixteen years ago, at the age of sixteen. SeeSupplemental Reply, ECF 37 at 10. It appears that he entered without inspection, i.e.,without permission.

On January 7, 2005, Lopez–Collazo pled guilty, in the Circuit Court for Talbot County, Maryland, Case No. K–04–8063, to Theft Under $500, in violation of Md.Code (2005 Supp.), § 7–104 of the Criminal Law Article(“C.L.”). SeeECF 24–5 at 14 (Maryland Sentencing Guidelines Worksheet); ECF 24–5 at 13 (Certificate of Presiding Judge).C.L. § 7–104is titled “General theft provisions.” It criminalizes a variety of means in which to commit the offense of theft, including “unauthorized control over property”; “unauthorized control over property by deception”; “possessing stolen personal property”; “control over property, lost, mislaid or delivered by mistake”; and “services available only for compensation.”

The exhibits show that, on January 7, 2005, with the aid of an interpreter, defendant completed a written form titled “Examination of Defendant Prior to Acceptance of Guilty Pleas” (“Examination”), ECF 24–5. The Examination constituted the plea colloquy. Question 6 asked: “Can you understand, read and write the English language?” ECF 24–5 at 3. Lopez–Collazo answered: “No—Spanish is my native language. I have an interpreter present.” Id.Question 14 specified the charge to which defendant pleaded guilty. It merely lists the case number, the count, the offense, i.e.,“Theft Less Than $500.00,” and the maximum penalty. See alsoQuestion 28, ECF 24–5 at 8. Question 37 asked: “Do you wish to plead guilty because you are in fact guilty, because you believe it is in your best interest to plead guilty or for both of these reasons?” ECF 24–5 at 11. Defendant answered: “It is in my best interest.” Id.

Defendant's attorney certified that the guilty plea was knowing and voluntary. ECF 24–5 at 12. In addition, the presiding judge, William Horne, certified that he “reviewed in detail all contents of this form orally with the Defendant.”³ECF 24–5 at 13. Further, he determined that defendant's plea to the charge in paragraph 14 of the Examination was knowing and voluntary. The judge also found a factual basis for the plea, based on “hearing a statement of facts....” ECF 24–5 at 13 ¶ 4. However, nothing in the plea documents submitted by the Government shows the factual basis for defendant's plea. SeeECF 24–5 at 2–14.

According to the applicable Maryland Sentencing Guidelines Worksheet, Lopez–Collazo's plea was tendered in relation to an offense committed on October 16, 2003. SeeECF 24–5 at 14. The “Statement of Probable Cause,” which does not appear as part of the plea colloquy, alleges that defendant cashed a forged check on October 16, 2003. SeeECF 36–1 at 2 (Statement of Probable Cause); see alsoResponse, ECF 24 at 1.

At the time of his guilty plea, Lopez–Collazo had no prior record. Id.at 14. He was sentenced to eighteen months imprisonment, with the suspension of all but time served from July 8, 2004, and three years of probation. Id.at 14, 18 (Probation/Supervision Order). In addition, Lopez–Collazo was ordered to pay restitution in the amount of $437.00. Id.at 15 (Restitution Order).

Sometime in 2006, Lopez–Collazo “and his U.S. citizen girlfriend had their first child, who is also a U.S. citizen.” Supplemental Reply, ECF 37 at 10. In addition, “[s]he had a toddler from a prior relationship whom [defendant] was raising as his own.” Id.

On December 1, 2006, Lopez–Collazo and his brother were involved in an altercation in Dorchester County, Maryland with officers of the Cambridge Police Department. ECF 24–4 at 11 (“Plea Colloquy & Sentencing”). Thereafter, on May 10, 2007, defendant appeared with counsel in the Circuit Court for Dorchester County, Maryland, in Case No. 09–K–07–012557, and pled guilty to Assault in the Second Degree under Md.Code (2007 Supp.), C.L. § 3–203. SeeECF 24–3 at 1, 4 (Case History); Plea Colloquy & Sentencing, ECF 24–4. C.L. § 3–203(a)states: “A person may not commit an assault.”Section 3–203(c)(3)provides that assault in the second degree of a law enforcement officer is a felony under State law, subject to a higher fine than assault of persons who are not law enforcement officers. Lopez–Collazo also pled guilty to driving without a license. ECF 24–3 at 5.

The plea colloquy was conducted in English, with the aid of an interpreter. ECF 24–4 at 5, 7. It appears that Lopez–Collazo answered requests for his name, home address, and age in English, on his own behalf. Id.at 6. However, he answered the remainder of the questions through an interpreter. ECF 24–4.

During the plea colloquy, the prosecutor set forth the facts the State would have proved if the case went to trial, as follows, ECF 24–4 at 10–11:

[O]n December 1st, 2006 Officers of the Cambridge Police Department responded to 501 Maryland Avenue for a fight. The Police would later learn that that was related to an attempted theft from the business at that location.

As Officers arrived at that location the Defendant Agustin Lopez entered a vehicle behind the driver's—in the driver's seat and locked the doors. As Officers approached the vehicle Mr. Lopez put the vehicle into drive and attempted to leave that location in the direction of Corporal David Satterfield. The Officer fearing for his safety was forced to jump out of the way of the vehicle. Another Officer entered the vehicle through a passenger side window and placed the vehicle into park to stop the vehicle.

Officers then pulled Mr. Lopez from the vehicle in an attempt to place him under arrest. And while doing so the Officers would testify that Mr. Lopez resisted that arrest by attempting to kick and strike them with his hands. Officer Satterfield would testify that he did not consent to being struck by the Defendant.

He would also testify that they later caused a Motor Vehicle Administration check to be done on Mr. Lopez's license status. And they would learn that he has in fact no Maryland Driver's License.

The Officers would testify that the Defendant Agustin Lopez is the person who struck him and did not have a driver's license. And those events occurred in Dorchester County.

During Lopez–Collazo's sentencing on the assault and license convictions (counts Five and Eleven), conducted the same day (May 10, 2007), the prosecutor stated that Lopez–Collazo's codefendant, Toro Lopez–Collazo, “had actually engaged in the assault on the Officers in the same episode” and, according to the prosecutor, “to a more serious degree....” ECF 24–4 at 12. He added that the codefendant was sentenced in State district court to three months for resisting arrest and sixty days “on a theft count,” and he requested for Lopez–Collazo a “sentence not to exceed that of the Codefendant.” ECF 24–4 at 12.

During the same sentencing, Lopez–Collazo's attorney stated, id.at 12–14:

Your honor, I believe that that day there was a great deal of confusion. And Mr. Lopez's brother was at the time with Mr. Lopez. And the brother took beers and put them down his pants and attempted to steal them and remove them from the store without paying for them. Mr. Lopez the Defendant saw his brother doing this. And Mr. Lopez had come to purchase beer which he did so. And he went out to his car.

And it's my understanding that all he wanted to do was basically leave and not to be involved with what his brother was doing. And I'm not sure if the police thought he was the individual who had stolen the beer or not. And I wonder about that just because they actually—the police took the beer that Mr. Lopez had purchased and took it back to the store and returned it to the Clerk. So I think there may have been some confusion about what his involvement was inside the store as well. But I think having had an opportunity to reflect on it, it would have been better to stay there and

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