Free Response in Opposition - District Court of California - California

Case 3:07-cr-03190-JAH

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KAREN P. HEWITT United States Attorney PETER J. MAZZA Assistant U.S. Attorney California State Bar No. 239918 United States Attorney's Office 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-5528/(619) 235-2757 (Fax) Email: [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) JOSE REYMUNDO ) CONTRERAS-HERNANDEZ, ) ) Defendant. ) ) ) ) ) ) ) Case No. 07CR3190-JAH DATE: March 10, 2008 TIME: 8:30 a.m. Honorable John A. Houston UNITED STATES' RESPONSE AND OPPOSITION TO DEFENDANT'S MOTION TO DISMISS THE INDICTMENT DUE TO AN INVALID DEPORTATION TOGETHER WITH STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES

COMES NOW the plaintiff, UNITED STATES OF AMERICA, by and through its counsel, Karen P. Hewitt, United States Attorney, and Peter J. Mazza, Assistant U.S. Attorney, and hereby files its Response and Opposition to Defendant's above-referenced motion in the above-captioned case. Said Response is based upon the files

and records of this case together with the attached statement of facts and memorandum of points and authorities. // // //

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DATED: March 3, 2008. Respectfully submitted, KAREN P. HEWITT United States Attorney s/ Peter J. Mazza PETER J. MAZZA Assistant United States Attorney

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KAREN P. HEWITT United States Attorney PETER J. MAZZA Assistant U.S. Attorney California State Bar No. 239918 United States Attorney's Office 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-5528/(619) 235-2757 (Fax) Email: [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) ) ) Plaintiff, ) ) v. ) ) JOSE REYMUNDO ) CONTRERAS-HERNANDEZ, ) ) Defendant. ) ) UNITED STATES OF AMERICA, I STATEMENT OF THE CASE On November 23, 2007, a federal grand jury in the Southern District of California returned a one-count Indictment charging Jose Reymundo Contreras-Hernandez ("Defendant") with Deported Alien Found in the United States, in violation of Title 8, United States Code, Section 1326. The Indictment further alleged that Case No. 07CR3190-JAH DATE: March 10, 2008 TIME: 8:30 a.m. Honorable John A. Houston UNITED STATES' STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES

Defendant had been removed from the United States subsequent to October 28, 2005. //

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II STATEMENT OF FACTS THE INSTANT OFFENSE On October 27, 2007, United States Supervisory Border Patrol Agent Mark E. Noland was conducting assigned patrol duties in the Campo Border Patrol Stations area of operations. At approximately 3:00 a.m., Agent Noland responded to a seismic intrusion device located on a trail known to be used by illegal aliens to further their illegal entries into the United States. The seismic

intrusion device is located approximately nine miles east of the Tecate, California Port of Entry and approximately 13 miles north of the United States/Mexico international boundary. Upon arriving at the location of the seismic intrusion device, Agent Noland observed fresh footprints headed in a northbound direction. Agent Noland followed the footprints north until he came upon a group of ten individuals attempting to conceal themselves. Agent Noland identified himself as an United States

Border Patrol agent. He then questioned each individual regarding their immigration status. All ten individuals, including

Defendant, stated that they were citizens and nationals of Mexico without any documents to allow them to enter or remain in the United States legally. Defendant and the other nine individuals

were taken into custody and transported to the Campo, California Border Patrol Station. At the station, Defendant's personal information was entered into immigration and criminal history databases. Defendant's

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identity was confirmed, along with his criminal and immigration histories. At approximately 3:00 p.m., Agents informed Defendant of his Miranda rights. Defendant invoked those rights. No questions

were asked of Defendant. B. DEFENDANT'S IMMIGRATION HISTORY

Defendant is a citizen of Mexico who was physically removed from the United States through the San Ysidro, California Port of Entry to Mexico on September 27, 2007. C. DEFENDANT'S CRIMINAL HISTORY

Defendant was convicted of Solicitation to Commit Murder, in violation of California Penal Code Section 653f(b) by a California Superior Court in Santa Cruz, California on October 28, 2005. The Superior Court sentenced Defendant to six years in prison. III MEMORANDUM OF POINTS AND AUTHORITIES Defendant deportation. seeks to collaterally attack his underlying

To do so, Defendant must show that 1) he exhausted

all his administrative remedies available to appeal his removal order; 2) the underlying removal proceedings at which the order was issued improperly deprived him of the opportunity for judicial review; and 3) the entry of the order was fundamentally unfair. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004). Such order

would be fundamentally unfair if Defendant's due process rights were violated by defects in his underlying deportation proceeding, and if he suffered prejudice as a result of those defects. Id.

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1 A. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 the BECAUSE DEFENDANT WAS CONVICTED OF AN AGGRAVATED FELONY, HE CANNOT ESTABLISH THAT HE WAS PREJUDICED BY HIS REMOVAL In his motion to dismiss his Indictment, Defendant argues his 2007 administrative removal was invalid for a variety of reasons. This Court need not reach all of these arguments, however, because Defendant cannot establish that he was in any way prejudiced by this removal, which Defendant must establish. v. Corrales-Beltran, 192 F.3d 1311, 1316 See United States (9th Cir. 1999).

Prejudice can only be demonstrated if Defendant shows that he had plausible grounds for relief from deportation. United States v. Because

Arce-Hernandez, 163 F.3d 559, 564 (9th Cir. 1998).

Defendant had not plausible relief from deportation, his motion must fail. Defendant is not eligible for "any relief from removal that Attorney General may grant in the Attorney General's

discretion." INA § 238(b)(5).

He is an aggravated felon, which

means he is conclusively presumed to be subject to removal and is ineligible for cancellation of removal, voluntary departure, and registration as a permanent resident alien. See United States v. Espinoza-Farlo, 34 F.3d 469, 471-472 (7th Cir. 1994). When we add to the obstacles imposed by virtue of that status the effect of 8 U.S.C. § 1228(b)(5)'s exclusion of aliens removed under the expedited procedures from "any relief from removal that the Attorney General may grant in the Attorney General's discretion," the absence of prejudice is deducible almost as a matter of law. See United States v. Garcia-Martinez, 228 F.3d 956, 963 (9th Cir.

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2000) (holding that for alien convicted of aggravated felony and placed in expedited procedures under § 1228, removal is "foregone conclusion"); United States v. Benitez-Villafuerte, 186 F.3d 651, 659 (5thCir. 1999) (same). Under 8 U.S.C. § 1227(a)(2)(A)(iii), any "alien who is convicted of an aggravated felony at any time after admission is deportable." No alien deportable as an aggravated felon under

that section "shall be eligible for any relief from removal that the Attorney General may grant in the Attorney General's

discretion."

8 U.S.C. § 1228(b)(5).

There simply is no way for

Defendant to establish any prejudice because he was not eligible for any relief from deportation. See Garcia- Martinez, 228 F.3d

at 964 (finding that defendant needed to show actual prejudice rather than "assumed" prejudice, and that defendant could not do so because the official removing him had no discretionary

authority to grant relief from deportation in light of defendant's prior rape conviction). Defendant nonetheless argues that "solicitation to commit murder in and of itself is not a crime of violence." Mot. 5.) This is simply incorrect. (Def.'s

Title 8, United States Code,

Section 1101(a)(43)(F) defines an aggravated felony as "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year." Section 16 of Title 18 in turn defines a crime of violence as: (a) an offense that has as an element the use, attempted use, or threatened use of physical force 7

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against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 18 U.S.C. § 16. First, under California law, solicitation to commit murder is a felony. convicted See Cal. Penal Code § 653f(b) (statomg that any person under of this statute six, is or punishable nine by a term of

imprisonment

"three,

years").

Defendant's

sentence of six years means that his crime qualifies as a "a crime of violence . . . for which the term of imprisonment [is] at least one year" under 8 U.S.C. § 1101(a)(43)(F). Second, looking to the "statutory definition of the prior offense," Ye v. I.N.S., 214 F.3d 1128, 1133 (9th Cir. 2000), Defendant's conviction for solicitation to commit murder as

defined in California Penal Code § 653f(b) qualifies as a crime of violence under 18 U.S.C. § 16(b) because solicitation to commit murder is a felony that involves a substantial risk of the use of physical force. Several cases bear out this conclusion.

In Ng v. Attorney General of the United States, 436 F.3d 392 (3rd Cir. 2006), the defendant was convicted of three counts of violating 18 U.S.C. § 1958, which proscribes the use of interstate commerce facilities in the commission of a murder-for-hire. Ng,

436 F.3d at 394. The Third Circuit concluded that murder-for-hire constituted a crime of violence under section 16(b) because the statute categorically posed a substantial risk that physical force will be used against another. Id. at 397. The court noted that

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because it employed the Taylor categorical analysis it did not matter that Ng had contracted with a government informant who had no intent to carry out the murder. Id. The court stated that

despite that "some violations of § 1958 will never culminate in an actual agreement or the commission of a murder does not alter our view that the natural consequence of . . . a murder-for-hire is that physical force will be used upon another." Id.

The Ninth Circuit similarly concluded that a conviction for solicitation to commit murder is a crime of violence for

sentencing purposes under USSG § 4B1.2 in United States v. Cox, 74 F.3d 189 (9th Cir. 1996). violence" as: any offense under federal or state law punishable by imprisonment for a term exceeding one year that ­ (i) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (ii) . . . otherwise involves conduct that presents a serious potential risk of physical injury to another. USSG § 4B1.2(1). This language is not distinguishable from the Section 4B1.2 defines a "crime of

17 definition of 18 U.S.C. § 16(b) in any material way, and to the 18 extent that it is different, it is more narrow because section 19 4B1.2(1)(ii) requires the "potential risk of physical injury" 20 whereas section 16(b) only requires a "substantial risk that 21 physical force" be employed. (Emphasis added). The Ninth Circuit 22 reasoned that "[t]o ask someone to murder your wife for money 23 involves a high degree of threat of physical force against one's 24 wife." 25 181 F.3d 774 (6th Cir. 1999) (holding solicitation to commit 26 27 28 9 Cox, 74 F.3d at 190. See also United States v. Walker,

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aggravated purposes).

robbery

is

a

crime

of

violence

for

sentencing

As is demonstrated by the cases above, Defendant's conviction for solicitation to commit murder in violation of California Penal Code § 653f(b) is a crime of violence under section 16(b). California Penal Code § 653f(b) states: "Every person who, with the intent that the crime be committed, solicits another to commit or join in the commission of murder shall be punished in the state prison for three, six, or nine years." Cal. Penal Code § 653f(b). Even conceding ­ as Defendant argues ­ that the crime of

solicitation to commit murder is completed as of the moment when the solicitation occurs, the crime would nonetheless involve a substantial risk that physical force will be used in the course of committing the offense. decision in Leocal v. On this point, the Supreme Court's Ashcroft, 543 U.S. 1, 10 (2004) is

instructive.

In Leocal, the Court discussed the meaning of

section 16(b), explaining that the section: covers offenses that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing any offense. The reckless disregard in § 16(b) relates not to the general conduct or to the possibility that harm will result from a person's conduct, but to the risk that the use of physical force against another might be required in committing a crime. Leocal, 543 U.S. at 10. The Court cited burglary as the classical

23 example of a crime that would qualify as a "crime of violence" 24 under section 16(b) because "burglary, by its nature, involves a 25 substantial risk that the burglar will use force against a victim 26 in completing the crime." 27 28 10 Id. Thus, like the burglar who

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1/

necessarily disregards the risk that he will be required to intentionally cause substantial risk to the home's occupants, Defendant necessarily disregarded the substantial risk attendant to his solicitation of murder that physical force would be necessary against the person of another "in commiting the crime." Nor is it of any relevance that Defendant here contracted with an undercover police officer to kill his ex-wife. Mot. 1.) (Def.'s

As Ng explained, a categorical analysis of the statute See Ng, 436

at issue renders the underlying facts irrelevant.

F.3d at 397. The solicitation of a murder inherently involves the substantial risk of physical force being used in the course of committing an offense regardless of whether the crime solicited is ultimately carried out. Accordingly, Defendant's conviction for

solicitation to commit the murder of his ex-wife is a crime of violence under 18 U.S.C. § 16(b), and thus an aggravated felony under 8 U.S.C. § 1101(a)(43)(F).1/ // // //

Importantly, Defendant cites no case to dispute this conclusion. While the Ninth Circuit has found that crimes regarding solicitation to possess narcotics do not qualify as aggravated felonies, see Leyva-Licea v. INS, 187 F.3d 1147, 1150 (9 th Cir. 1996), those cases are inapposite. Whether a drug crime qualifies as an aggravated felony turns on whether it is punishable under the Controlled Substances Act. The Controlled Substances Act does not mention solicitation crimes, nor does it contain a catch-all provision that could be read to cover solicitation crimes. See Leyva-Licea, 187 F.3d at 1150. 11

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B.

ADMINISTRATIVE REMOVALS ARE ACCEPTABLE FORMS OF REMOVAL, AND THE ADMINISTRATIVE REMOVAL OF DEFENDANT DID NOT VIOLATE HIS DUE PROCESS RIGHTS Defendant also argues that he was prejudiced by a lack of

counsel at his administrative removal proceedings.

However, the

Ninth Circuit has consistently and repeatedly upheld the validity of expedited administrative removal proceedings where a defendant is unrepresented. Simply put, Defendant cannot establish that he

was in any way prejudiced by his removal, and his motion should be denied. The Ninth Circuit has made clear that "the full panoply of . . . procedural and substantive safeguards which are provided at a criminal proceeding are not required at a deportation hearing." United States v. Solano-Godines, 120 F.3d 927, 960-61 (9 th Cir. 1997). Therefore, there is no right to counsel at an

administrative removal hearing. Lara-Torres v. Ashcroft, 383 F.3d 968, 974 (9th Cir. 2004). Nonetheless, the Ninth Circuit has

repeatedly held that absent a showing of a due process violation and prejudice, the Government may rely on a deportation pursuant to a Final Administrative Removal Order in prosecuting a defendant under 8 U.S.C. § 1326. United States v. Garcia-Martinez, 228 F.3d 956 (9th Cir. 2000). Aggravated felons are subject to expedited See 8 U.S.C. § 1228(b); United States v. F.3d 1011, 1012 (9th Cir. 2004).

administrative removal. Hernandez-Vermudez, 356

Proceedings under § 1228(b) are governed by 8 C.F.R. § 238.1. Under § 238.1, removal proceedings commence when the alien is

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served with the Notice of Intent in conformance with 8 C.F.R. §§ 103.5a(a)(2) & 103.5a(c)(2). See 8 C.F.R. § 238.1(b)(2)(I).

Here, the Notice of Intent, (Def.'s Mot., Exh. C), included notice to Defendant that he had the right to have counsel present at his administrative hearing. Whether Defendant chose to avail

himself to counsel at his own cost was a decision purely his own. Nothing was done by the Government to deny him representation at his administrative hearing. Regardless, Defendant had no Sixth

Amendment right to have counsel present at his administrative removal proceeding. Accordingly, Defendant's argument that he

suffered a due process violation is unavailing. C. EXHAUSTION Finally, in order to successfully collaterally attack a prior removal order, a defendant must demonstrate that he exhausted his administrative remedies. United States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir 2006); see also 8 U.S.C. § 1326(d). However,

because Defendant was convicted of an aggravated felony, he had no right to administrative because review. did 8 U.S.C. not § 1252(a)(2)(C). any right to

Therefore,

Defendant

have

administrative review, there is no way the deportation proceeding improperly denied him of that right. // // // // // See 8 U.S.C. § 1326(d)(2).

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1 2 3 4 5 DATED: March 3, 2008. 6

IV CONCLUSION For the foregoing reasons, the United States respectfully requests that Defendant's motion be denied.

Respectfully submitted, 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 s/ Peter J. Mazza PETER J. MAZZA Assistant United States Attorney KAREN P. HEWITT United States Attorney

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, CERTIFICATE OF SERVICE JOSE REYMUNDO CONTRERAS-HERNANDEZ, Defendant. Case No. 07CR3190-JAH

IT IS HEREBY CERTIFIED THAT: I, PETER J. MAZZA, am a citizen of the United States and am at least eighteen years of age. My business address is 880 Front Street, Room 6293, San Diego, California 92101-8893. I am not a party to the above-entitled action. I have caused service of RESPONSE AND OPPOSITION TO DEFENDANT'S MOTION TO DISMISS THE INDICTMENT DUE TO AN INVALID DEPORTATION on the following parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them. 1. Candis L. Mitchell, Esq.

I declare under penalty of perjury that the foregoing is true and correct. Executed on March 3, 2008. s/ Peter J. Mazza PETER J. MAZZA