Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Sanchez-Porras

United States District Court, D. New Mexico

October 18, 2019

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

          ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          KENNETH J. GONZALES, UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on Defendant's Objections (Doc. 40) to the Magistrate Judge's Proposed Findings and Recommended Disposition ("PFRD"). On reference from the undersigned (Doc. 29), United States Magistrate Judge Gregory J. Fouratt recommended that this Court deny Defendant's Motion to Dismiss Indictment (Doc. 23) ("Motion"). See (Doc. 39). On October 10, 2019, Defendant filed his Objections to Report and Recommendation and to Request for De Novo Review of Magistrate's Report and Recommendation ("Defendant's Objections") (Doc. 40). The Government filed its objections on October 11, 2019. (Doc. 41). As explained below, the Court concludes that Defendant's Objections are without merit. Therefore, the Court adopts Judge Fouratt's PFRD, overrules Defendant's Objections, and denies Defendant's Motion.[1]

         I. BACKGROUND

         Judge Fouratt detailed the procedural and factual background of this case in his PFRD. (Doc. 39) at 1-5. This Court adopts those findings in full. In sum, the Government charged Defendant with illegal reentry under 8 U.S.C. §§ 1326(a) and (b). Defendant then moved to dismiss this indictment under 8 U.S.C. § 1326(d), alleging that the underlying deportation order- the validity of which is an essential element of the indictment-was unlawful. Both parties agree that the original charge (knowingly possessing marijuana with the intent to deliver, in violation of Iowa Code Ann. § 124.401(1)(d) (1997)) that served as the basis for Defendant's prior removal had been dismissed. The United States asserted, however, that Defendant would have been removed nonetheless because he had been convicted of a drug tax stamp felony under Iowa Code Ann. §§ 453.1(3)(b) and 453B.12. Judge format concluded that, pursuant to § 1326(d)(3), the entry of the underlying removal order was not fundamentally unfair because the drug tax stamp violation would have provided an independent basis for removal. Because Defendant's failure to establish § 1326(d)(3) was dispositive of the Motion, Judge Fouratt declined to reach a conclusion on whether Defendant met the further requirements in § 1326(d)(1) and (2).

         II. OBJECTIONS

         A. Defendant's Objectionic

         Defendant asserts a single objection: ok erroneously concluded that the Immigration and Naturalization Service would have substituted-in place of the dismissed possession charge-Defendant's Iowa drug tax stamp conviction as the underlying charge in the Notice to Appear ("NTA"). (Doc. 40) at 1. Specifically, Defendant argues that the Government failed to offer any evidence that would support that such a substitution would have occurred. Id. at 2. Defendant further argues that his proffered evidence, specifically an affidavit executed by and testimony from immigration attorney Orlando Mondragon, shows that the underlying removal charge would have been terminated. Id. at 2-4.

         B. Government's Objections

         The United States objects to the PFRD to "clarify its position in relation to the remaining elements of Defendant's § 1326(d) challenge and [to] preserve these arguments should the matter proceed to appeal." (Doc. 41) at 1. Specifically, the Government contends that Defendant failed to exhaust administrative remedies under § 1326(d)(1), id. at 3-6, and failed to demonstrate that the removal proceeding deprived him of the opportunity for judicial review under § 1326(d)(2), id. at 6-9. The Court need not address the Government's objections because, as the PFRD correctly concluded, § 1326(d)(3) is dispositive of Defendant's Motion.

         III. LEGAL STANDARDS

         A. Standard for Objections to a Magistrate Judge 's Report

         Pursuant to 28 U.S.C. § 636(b)(1)(B) (2012), a district judge may designate a magistrate judge to submit proposed findings of fact and recommendations for the disposition of any case pending before the Court. Where a party timely objects to the magistrate judge's proposed disposition, this Court conducts a de novo review of all portions of the recommendation that have been objected to and "may accept, reject, or modify, in whole or in part, the findings or recommendations." See Id. § 636(b)(1)(C). De novo review requires the district judge to consider relevant evidence of record and not merely to review the magistrate judge's recommendation. In re Griego, 64 F.3d 583-84 (10th Cir. 1995). "[A] party's objections to the magistrate judge's [PFRD] must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Prop., With Buildings, Appurtenances, Improvements, & Contents, 73 F.3d 1057, 1060 (10th Cir. 1996).

         B. Standard to Collaterally Attack a Prior Removal Order

         A defendant prosecuted under 8 U.S.C. § 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.