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United States v. Sanchez-Porras

United States District Court, D. New Mexico

September 27, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
BENJAMIN SANCHEZ-PORRAS, Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court on Defendant Benjamin Sanchez-Porras’s “Motion to Dismiss the Indictment” (“Motion”). ECF 23.[1] The Motion is fully briefed. See ECFs 26 (United States’ Response), 32 (Defendant’s Reply). After holding an evidentiary hearing and reviewing the parties’ briefing and attached exhibits as well as relevant case law, the Court recommends for the following reasons that the Motion be denied.

         I. BACKGROUND

         The United States charged Sanchez-Porras with illegal reentry under 8 U.S.C. §§ 1326(a) and (b). See ECF 12. In the Motion, Defendant mounts an attack on the underlying deportation order, which forms the foundation for the instant charge. The indictment must be dismissed, Defendant submits, because he can establish that the underlying deportation order-the validity of which is an essential element of the indictment-was unlawful. Defendant maintains that the immigration court proceeding that resulted in his removal from the United States was “fundamentally unfair” because it was based on deficient legal representation that not only “improperly deprived [him] of the opportunity for judicial review, ” but also precluded him from exhausting his administrative remedies. Mot. 1-4 (relying on § 1326(d)(1)-(3)). Consequently, he asserts that he may permissibly “challenge the validity of the deportation order” on which the indictment was based. Id. at 3 (quoting § 1326(d)). Defendant specifically claims that his retained counsel during the 1999 removal proceeding failed to uncover that the underlying felony offense of “possession of marijuana with intent to distribute”-which provided the basis for his deportation-was not the offense of which Defendant had been convicted. Instead, in exchange for Defendant’s guilty plea to a state drug tax stamp felony, the marijuana distribution charge had been dismissed. Defendant now complains that his immigration counsel erroneously advised him to admit to having committed that previously-dismissed offense, concede removal, and waive his right to appeal. Defendant contends that, but for the ineffective assistance he received from his retained immigration counsel, he would not have admitted to having committed the dismissed charge and the outcome of the immigration proceeding would have been different.

         The United States responds that Defendant cannot carry his burden to establish the elements of § 1326(d), even assuming that Defendant’s counsel provided ineffective assistance at the removal proceeding. The United States further emphasizes that, among other things, Defendant failed to exhaust his administrative remedies as required by § 1326(d)(1) because he knowingly waived his right to appeal and, irrespective of counsel’s deficiencies, failed to pursue available administrative relief. The United States also asserts that Defendant failed to show that he was improperly deprived of judicial review under § 1326(d)(2). To finish, the United States posits that Defendant simply cannot establish that the removal order was fundamentally unfair- as required by § 1326(d)(3)-because of Defendant’s felony conviction under Iowa’s drug tax stamp law, Iowa Code Ann. §§ 453B.1(3) & 453B.12. According to the United States, this felony could have properly served as an independent basis for removal under either 8 U.S.C. §§ 1227(a)(2)(B)(i) (violation relating to a controlled substance) or 1227(a)(2)(A)(iii) (aggravated felony conviction).

         The Court held an evidentiary hearing on September 16, 2019. See ECFs 33, 35, 36. At the hearing, the parties stipulated to the admission into evidence of all documents that the parties had appended to their briefing. ECF 38, Evid. Hr’g 17:1-3. The Court also allowed, over the Government’s objection, the testimony of immigration attorney Orlando Mondragon and Defendant himself. Id. 17:9-16. Among other thing, Mr. Mondragon’s testimony focused on whether Iowa Code Ann. §§ 453B.1(3) & 453B.12 would have qualified Defendant for removal as well as whether Defendant would have been eligible for discretionary relief from removal. Id., passim. Defendant’s testimony concerned counsel’s performance at the removal proceeding, the circumstances surrounding the underlying conviction, and his other arrests. Id. 43:19-65:6.

         II. FACTS

         For purposes of the Motion, and as a result of the parties’ stipulation at the evidentiary hearing, the Court accepts as uncontested the facts shown by the parties’ exhibits.

         In May 1998, Defendant was arrested in Iowa and charged in state court with two felonies: (1) knowingly possessing marijuana with the intent to deliver, in violation of Iowa Code Ann. § 124.401(1)(d) (1997) and (2) knowingly possessing marijuana weighing more that 42.5 grams with the intent to deliver, without affixing the appropriate tax stamp, in violation of Iowa Code Ann. §§ 453B.1(3) & 453B.12 (1997). Gov. Resp. Ex. A. Pursuant to a plea agreement, Defendant pled guilty to the tax stamp violation. Id. Ex. C. The possession with intent to deliver charge was ultimately dismissed pursuant to the plea agreement when the appeal time expired for Defendant’s conviction on Count II. Id.[2]

         On March 15, 1999, Defendant was detained by the former Immigration and Naturalization Service and personally served with a Notice to Appear (“NTA”). Def.’s Mot. Ex. A (Affidavit of Defendant); Gov. Resp. Ex. D (Notice to Appear). The NTA alleged that Defendant was subject to removal because he was convicted of “Possession of a Controlled Substance with the Intent to Deliver, to wit: Marijuana, in violation of Code of Iowa, Section 453.B.1(3) and 453B.12, 1997.” Resp. Ex. D. As pointed out by both parties, the NTA incorrectly listed the offense of conviction by labeling it with Count I’s title (“Possession of a Controlled Substance with the Intent to Deliver”) but citing to the statutory provisions for the drug tax stamp violation of Count II (Iowa Code Ann. §§ 453B.1(3) & 453B.12). Compare Resp. Ex. A with Resp. Ex. D.[3] The NTA also informed Defendant of his “right to appeal an adverse decision by the immigration judge.” Resp. Ex. D at 2.

         Defendant requested an immediate hearing, which was held before an Immigration Judge (“IJ”) on April 20, 1999. Attorney Joseph Rey, Sr. represented Defendant at the hearing. Mot. Ex. A; Resp. Exs. E (minutes of removal proceeding), F (Notice of Rights), G (Removal Proceeding Audio). Through counsel, Defendant admitted to the four allegations charged in the NTA. Resp. Ex. G, 1:17.[4] He also conceded removability for committing an aggravated felony in violation of 8 U.S.C. § 1227(a)(2)(A)(iii), and thereafter requested no relief. Id. at 1:24-1:29, 1:35-1:45. Defendant then confirmed that he “want[ed] to be removed from the United States to Mexico.” Id. at 1:54. The IJ explained to Defendant that he would lose his resident status and be permanently barred from the United States. Id. Nonetheless, Defendant reaffirmed that he wanted to be removed, accepted the IJ’s removal order, and, through counsel, waived his appeal right. Id. at 2:10-4:45. Defendant was removed the same day. Id. Ex. I.

         Nearly twenty years later, on February 14, 2019, Homeland Security Investigations arrested Defendant in Las Cruces, New Mexico and charged him with illegal reentry after deportation in violation of § 1326(a). See ECF 1.

         III. LEGAL STANDARD

         Conviction of a § 1326 illegal reentry offense generally requires that the government establish: “(1) that the alien ‘has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding’; and (2) that the alien thereafter has ‘enter[ed], attempt[ed] to enter, or is at any time found in, the United States.’” United States v. Adame-Orozco, 607 F.3d 647, 650–51 (10th Cir. 2010) (brackets in original) (quoting § 1326). In limited instances, a defendant who is prosecuted under § 1326 for illegal reentry may challenge in that criminal proceeding the validity of a prior removal order. 8 U.S.C. § 1326(d); see United States v. Mendoza-Lopez, 481 U.S. 828, 830-32 (1987).

         To collaterally attack the previous removal order, an alien must show that:

(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order;
(2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and
(3) the entry of the order was fundamentally unfair.

§ 1326(d)(1)-(3).

         “Because a final deportation order enjoys a presumption of regularity, once the government shows that the alien was deported while such an order was outstanding, the burden shifts to the defendant-alien, and it is he who must prove each of § 1326(d)’s elements to overcome the presumed legality of the earlier deportation order.” Adame-Orozco, 607 F.3d at 651 (citing United States v. Arevalo–Tavares, 210 F.3d 1198, 1200 (10th Cir. 2000) (per curiam)); United States v. Almanza-Vigil, 912 F.3d 1310, 1316 (10th Cir. 2019) (upholding conviction based on defendant’s failure to satisfy § 1326(d)(3) alone).

         In reviewing a collateral attack on a previous removal order, the Court applies the law that existed at the time and place of Defendant’s removal proceedings, though later judicial decisions, such as those involving “statutory interpretation are fully retroactive because they do not change the law, but rather explain what the law has always meant.” United States v. Rivera-Nevarez, 418 F.3d 1104, 1107 (10th Cir. 2005).

         IV. ANALYSIS

         As noted above, if Defendant fails to carry his burden on any one element of § 1326(d), the instant Motion must be denied. Therefore, in its discretion, the Court will begin its analysis with § 1326(d)(3), whether the entry of the removal order was fundamentally unfair, before turning to § 1326(d)(1), the exhaustion requirement. The Court will end its discussion by touching on Defendant’s opportunity for judicial review under § 1326(d)(2).

         A. The Removal Order Was Not Fundamentally Unfair

         Defendant maintains that if Mr. Rey had conducted a proper investigation prior to the removal proceeding, Defendant would not have been removed because he was not convicted of the underlying felony used as the basis for removability, making the removal order fundamentally unfair. Mot. 1-3. The United States disagrees. It submits that Count II, the drug tax stamp violation to which Defendant pled guilty, would have been substituted as the underlying charge in the NTA, [5] thus providing two independent and proper bases for removal. The Court agrees with the United States for the reasons that follow.

         An alien “alleging that the entry of a previous removal order was fundamentally unfair [must] meet a reasonable-likelihood standard.” Almanza-Vigil, 912 F.3d at 1323 (citing United States v. Aguirre-Tello, 353 F.3d 1199, 1209 (10th Cir. 2004)). This requires the alien to “establish a reasonable likelihood that, but for the complained-of error, he would have avoided removal.” Id. (citing Aguirre-Tello, 353 F.3d at 1208); see also United States v. Sandoval, 390 F.3d 1294 (10th Cir. 2004) (“reasonable likelihood that, but for the errors complained of, he would not have been deported”) (citation omitted). Therefore, assuming Defendant’s removal order relied on the previously-dismissed Count I-and that the error was the product of ineffective assistance-the Court must consider whether, but for this error, there is a reasonable likelihood that Defendant would have avoided removal. Consequently, the Court must consider whether Count II, the offense to which both parties agree Defendant pled guilty, would nevertheless have resulted in his removal by qualifying as either (1) an aggravated felony under § 1227(a)(2)(A)(iii) or (2) a violation “relating to a controlled substance” under 8 U.S.C. § 1227(a)(2)(B)(i). If the answer to either question is yes, then Defendant cannot establish a reasonable likelihood that he would not have been deported. Because at the time of the removal proceeding at issue an aggravated felony would not have allowed for discretionary relief from removability, the Court, in its discretion, begins its analysis with that issue.

         1. Count II Does Not Qualify as an Offense Relating to Tax Evasion

         The United States asserts that Defendant’s conviction under Iowa Code Ann. §§ 453B.1(3) 6 453B.12-Iowa’s drug tax stamp law-qualified him for removal as an aggravated felon under 8 U.S.C. § 1101(a)(43)(M)(ii) as an “offense that . . . is described in section 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10, 000.” 8 U.S.C. § 1101(a)(43)(M)(ii); see Resp. 12. Specifically, the United States argues that Iowa’s law falls within § 7201’s coverage, which makes it a crime for “[a]ny person [to] willfully attempt[] in any manner to evade or defeat any tax imposed by this title or the payment thereof shall . . . be guilty of a felony.” 26 U.S.C. § 7201 (emphasis added); see Resp. 12.[6] To resolve this issue, the Court must determine whether 8 U.S.C. § 1101(a)(43)(M)(ii) encompasses Iowa’s drug tax stamp law.[7]

         When comparing state law crimes to § 1101(a)(43)(M)(ii), courts employ a “circumstance- specific” approach. Nijhawan v. Holder, 557 U.S. 29, 38 (2009).[8] This requires a court to categorically compare the generic elements of § 1101(a)(43)(M)(ii), i.e., a violation of 26 U.S.C. § 7201, to the generic elements of the state offense, and then look to the specific conviction to determine whether it meets the circumstance-specific elements found in § 1101(a)(43)(M)(ii), i.e., the revenue loss to the Government exceeds $10, 000.[9] “The categorical approach asks whether the state offense’s definition matches “the ‘generic’ federal definition of a corresponding aggravated felony.” Almanza-Vigil, 912 F.3d at 1317 (quoting Moncrieffe v. Holder, 569 U.S. 184, 190 (2013)). For a categorical match, “the state offense fits the generic offense only if it “necessarily” includes the generic federal offense. Id. (quoting Moncrieffe, 569 U.S. at 190). A court “presume[s] that the state conviction rested on the least of th[e] acts criminalized, then determine[s] whether the generic federal offense encompasses even those acts.” Id. at 190–91 (quoting Moncrieffe, 569 U.S. at 190-91). If the state statute is broader than the federal counterpart there is no categorical match. See Descamps v. United States, 570 U.S. 254, 257 (2013). Conversely, if the state statute criminalizes less activity (or the same amount of activity) than its federal analogue, then it is a categorical match and can be used as a predicate for removal. Id.

         Analyzed by the statute’s generic elements, a violation of § 7201 requires “the existence of a tax deficiency, an affirmative act constituting an evasion or attempted evasion of the tax, and willfulness.” United States v. Boisseau, 841 F.3d 1122, 1125 (10th Cir. 2016) (emphasis added) (citing Sansone v. United States, 380 U.S. 343, 351 (1965)). A violation of Iowa’s drug tax stamp law, on the other hand, requires that “(1) the defendant is a dealer, (2) who unlawfully possesses, distributes or offers to sell, (3) [marijuana], (4) without affixing a stamp, label, or other official indicia evidencing the tax imposed by chapter 453B has been paid.” State v. White, 545 N.W.2d 552, 555 (Iowa 1996) (emphasis added) (citing State v. Gallup, 500 N.W.2d 437, 442 (Iowa 1993)).[10] In turn, to establish the second element of Iowa’s drug tax stamp law, it must be shown “that the defendant knowingly or intentionally possessed a controlled substance, and that the defendant knew the substance he or she possessed was a controlled substance.” State v. Franzen, 495 N.W.2d 714, 717 (Iowa 1993) (discussing whether defendant’s guilty plea of an offense in violation of Iowa Code Ann. § 204.401, now § 124.401, would constitutionally bar prosecution of a drug tax stamp violation).

         The generic elements of the two statutes demonstrate that there is a clear categorical mismatch. To be sure, the Iowa drug tax stamp act provision requires no specific intent to evade a tax. In contrast, § 7201 requires a willful evasion or attempted evasion of a tax, i.e., voluntary, intentional evasion of a tax. See United States v. Yurek, 925 F.3d 423, 433 (10th Cir. 2019) (“To satisfy the willfulness requirement, the government had to prove a specific intent to evade taxes.”) (citing United States v. Payne, 978 F.2d 1177, 1182 (10th Cir. 1992)). The only mental state present in Iowa’s drug tax stamp law applies to the possession of controlled a substance. See Franzen, 495 N.W.2d at 717 (the State must prove that the defendant “knowingly or intentionally possessed a controlled substance, and that the defendant knew the substance he or she possessed was a controlled substance”). A finding that a defendant willfully failed to affix a drug tax stamp is not required. In that sense, Iowa’s statute-once a defendant knowingly and intentionally possesses a controlled substance and knows that the substance possessed is a controlled substance-sweeps broader than § 7201. See White, 545 N.W.2d at 556 (stating rules provide “the tax stamps must be affixed instantly” and that “it is not impossible to comply with the statute if it is interpreted to require that the tax stamps be affixed at the very time of acquisition”); see also State v. Breeding, 928 N.W.2d 686 (Iowa Ct. App. 2019) (same). Thus, applying the categorical approach, Iowa’s drug tax stamp violation does not qualify as an aggravated felony under § 1101(a)(43)(M)(ii).

         Nevertheless, in some instances the fact that a categorical infirmity exists does not end a court’s inquiry. Specifically, courts have appropriately used a “modified categorical approach” when a state statute is divisible, i.e., when it “sets out one or more elements of the offense in the alternative.” Descamps, 570 U.S. at 257.[11] This modified categorical approach “compare[s] the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.” Id. (emphasis added). With this basic understanding, it is clear that, even assuming Iowa’s statute is divisible, the result remains unchanged. To illustrate, the modified approach allows the substitution of an element that is alternatively listed to eliminate the state statute’s overbreadth of coverage. Here, Iowa’s stamp act does not list mental states in the alternative or even require a mental state in relation to the tax stamp element. Without a possible mental state that can be substituted in the alternative as a predicate to failing to affix a tax stamp, Iowa’s law will always cover more conduct than § 7201’s narrow willfulness requirement does. And because neither approach results in a match, the Court need not undertake a circumstance-specific analysis to determine whether the amount of loss to the government exceeded $10, 000. Accordingly, the Court rejects the United States’ assertion that 8 U.S.C. § 1101(a)(43)(M)(ii) would have qualified Defendant for removal.

         2. Count II Subjected Defendant to Removal as a Violation Relating to a Controlled Substance

         The Court now shifts its focus to whether a violation of Iowa’s drug tax stamp law provided a separate basis for removal as a law “relating to a controlled substance” under § 1227(a)(2)(B)(i).[12] As of March 15, 1999, the date on which ...


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