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United States v. Lopez

United States District Court, W.D. North Carolina, Charlotte Division

February 3, 2015


For Eliseo Martinez Lopez, also known as Eliseco Martinez Lopez, Defendant: W Rob Heroy, LEAD ATTORNEY, Charlotte, NC.

For USA, Plaintiff: Kenneth M. Smith, LEAD ATTORNEY, U.S. Attorney's Office, Charlotte, NC.


Max O. Cogburn Jr., United States District Judge.

THIS MATTER is before the court on defendant's Motion to Dismiss Pursuant to 8 U.S.C. § 1326(d). After initial briefs were filed, the court heard oral arguments on January 26, 2015, and allowed post-hearing briefing. Having considered all of the arguments of counsel, the court enters the following findings, conclusion, and Order denying the Motion to Dismiss.


Defendant is charged with unlawful reentry into the United States after removal subsequent to commission of an aggravated felony, all in violation of 8 U.S.C. § 1326(a) and (b)(2). See Indictment (#1). At the time a permanent resident alien, defendant was removed in 2007 to Mexico as an aggravated felon based on a conviction in the North Carolina General Court of Justice for Discharging a Weapon Into Occupied Property, a violation of § 14-34.1(a) of the North Carolina General Statutes. In moving to dismiss, defendant contends that the removal on which this action is founded was invalid because, in waiving a hearing before an immigration judge (" IJ" ) in 2007, he was denied due process, preventing him from contesting the Attorney General's basis for his removal, the state conviction which the United States Immigration and Customs Enforcement (hereinafter " ICE" ) determined qualified him as an aggravated felon.


For purposes of considering the Motion to Dismiss, the following facts appear to be undisputed. Prior to removal, defendant was a permanent resident alien, having emigrated from Mexico to the United States with his family as a young child. On November 9, 2005, the defendant was convicted in the North Carolina General Court of Justice, Superior Court Division for Mecklenburg County, of " Discharging a Weapon in Occupied Property," a violation of Chapter 14-34.1(a) of the North Carolina General Statutes. Defendant was sentenced to 25-39 months of imprisonment. See Govt. Ex. 2 (#16-2).

After such conviction, United States Immigrations and Customs Enforcement (" ICE" ) commenced proceedings to remove defendant as an aggravated felon. After receiving a Notice to Appear for removal proceedings in October 2007, defendant signed a " Statement Made for the Issuance of a Final Removal Order" (hereinafter " waiver" ).See Govt. Ex. 4 (#16-4).[1] In pertinent part, such waiver provided, as follows:

3. I understand that I have the right to hearing before a immigration judge in which hearing I have the right to be represented, the opportunity to examine and object to the evidence presented against me, to present witnesses in my own behalf, to cross-examine witnesses presented by the government, object to evidence presented by the government including my own written statements, to present my own evidence, have all matters on the record recorded verbatim, and that the government be required to prove that I am removable from the Unites States. I understand that it I had a hearing in front of a judge, he would consider if there was any relief from removal available to me. Additionally, I understand that I have a right to appeal. Knowing all the above, I hereby waive those rights and request that my removal proceedings be conducted solely by way of written record without a hearing.

Id. (error in the original). After receiving such waiver, an immigration judge (hereinafter " IJ" ) issued his " Decision and Order" on November 8, 2007, finding that such waiver was knowing, voluntary, and intelligent, and further concluding that the allegations of the charging document were true based on defendant's waiver.[2] Based on those findings, the IJ directed that defendant be removed from the United States. IJ Order, Govt. Ex. 5 (#16-5).

Defendant thereafter signed and/or acknowledged receipt of the Warrant of Removal/Deportation, which based his removal on his status as an aggravated felon. Defendant was then advised in the " Warning to Alien Removed or Deported" that he could not re-enter or be found in the United States at any time after deportation because he had been found inadmissible under section 237 of the Immigration and Naturalization Act due to having been convicted of an aggravated felony. Govt. Ex. 6 (#16-6). He was further advised that before any return he was required to seek permission to reapply for admission by contacting the United States Consulate or United States Department of Homeland Security. Id. Defendant acknowledged receiving such advice by placing his signature on the bottom of the form. Id.

Defendant was then removed from the United States, but, according to the Indictment, returned to the United States without first seeking or receiving permission from the Attorney General. Based on such return, the Grand Jury charged defendant with unlawful re-entry under 8 U.S.C. 1326(a).


Defendant moves to dismiss the indictment under Rule 12(b), Federal Rules of Criminal Procedure, based on an alleged defect in his removal, which is a collateral attack on the administrative proceedings which occurred before the Attorney General. As such, this court's inquiry is limited by 8 U.S.C. § 1326(d).

A district court may dismiss an indictment under Rule 12 " where there is an infirmity of law in the prosecution; a court may not dismiss an indictment, however, on a determination of facts that should have been developed at trial." United States v. Snipes,611 F.3d 855, 866 (11th Cir. 2010) (citation and internal quotation marks omitted). Rule 12(b)(2) provides that " [a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." Fed.R.Crim.P. 12(b)(2). As the Court of Appeals for the Fourth Circuit has noted, " a district court may consider a pretrial motion to dismiss an indictment where the government does not dispute the ability of the court to reach the motion and proffers, stipulates, or otherwise does not dispute the pertinent facts." United States ...

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