United States District Court, E.D. North Carolina, Southern Division
JAMES C. FOX, District Judge.
This matter is before the court on Defendant's Motion to Dismiss [DE-33]. The matter has been fully briefed and is now ripe for ruling. For the reasons more fully stated below, Defendant's Motion to Dismiss is DENIED without prejudice to either party to move for redaction of the indictment.
Factual and Procedural Background
On December 12, 2013, a Criminal Complaint issued charging Defendant with violating 8 U.S.C. § 1326(a) and (b)(2). See Complaint [DE-1]. Defendant was indicted in a single-count indictment on December 17, 2013. The indictment provides as follows:
On or about November 22, 2013, in the Eastern District of North Carolina, the defendant, ELSA MARGARITA TROCHEZ, also known as' Sandra Hernandez', an alien, was found in the United States after having previously been excluded, deported, and removed from the United States at Atlanta, Georgia, on or about June 24, 2005, and again at Hidalgo, Texas, on or about February 6, 2006, and not having obtained the express consent of the Attorney General, or his successor, to reapply for admission thereto.
All in violation of Title 8, United States Code, Section 1326(a) and (b)(2). See Indictment [DE-9]. The indictment includes an allegation of prior conviction, which states:
For purposes of Title 8, United States Code, Section 1326(b)(2), the defendant, ELSA MARGARITA TROCHEZ, also known as Sandra Hernandez', was excluded, deported and removed from the United States at Hidalgo, Texas, on or about February 6, 2006, after having been convicted of a conspiracy to engage in interstate transportation of stolen property, an aggravated felony, on or about April 26, 2005 in the United States District Court for the Eastern District of North Carolina.
Defendant filed the instant Motion to Dismiss on April 10, 2014. [DE-33.] In her motion, Defendant initially argues that she is not an aggravated felon. /d. at 1-2. Citing Almendarez-Torres v. United States, 523 U.S. 224 (1998), Defendant notes that under ordinary circumstances the Government has no obligation to allege the existence of an aggravated felony in the indictment. Id. at 2. Defendant contends, however, that this case is different because § 1326(b)(2) was incorporated into the charged conduct, and as such, it is no longer strictly a penalty provision. Id. Defendant concludes that by incorporating the allegation of an aggravated felony within Count One of the indictment, the Government created an essential element of the charged crime. Id.
On April 22, 2014, the Government filed a Response in Opposition. [DE-34.] In its Response, the Government contends that Defendant is not entitled to dismissal of the indictment because the determination of whether she is an aggravated felon or a felon is an issue for the court at sentencing. Id. at 3-4. The Government argues that pursuant to Almendarez-Torres, prior convictions are not elements of the offense, and whether prior convictions were sustained or not, and how they are legally classified, is an issue for the presiding judge at sentencing. Id. at 4 n.1.
As noted, the indictment charges Defendant with violating 8 U.S.C. § 1326(a) and (b)(2).
Title 8, United States Code, Section ...