Opinion
EP-99-CR-1842-DB.
April, 2000.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
On March 31, 2000, the Court held a bench trial in the above-captioned cause. Defendant Rosalio Perez-Gonzalez was present and represented by counsel. After questioning by the Court, Defendant indicated that he understood his rights and knowingly waived his right to trial by jury.
After hearing the evidence, the Court has determined that Defendant is guilty beyond a reasonable doubt of violating 8 U.S.C. § 1326 (illegal re-entry). In accordance with Federal Rule of Criminal Procedure 23(c), the Court enters these Findings of Fact and Conclusions of Law with respect to Defendant.
PROCEDURAL BACKGROUND
By a single count Indictment filed on December 22, 1999, Defendant was charged with illegally reentering the United States in violation of 8 U.S.C. § 1326(a). On January 5, 2000, the Government filed a Notice of Penalty Enhancement pursuant to 8 U.S.C. § 1326(b)(2).
Defendant filed a Motion to Dismiss the Indictment on March 2, 2000, contending that his deportation from the United States, which forms the basis of the charge against him in this cause, should not be used against him as an element of the charged crime because to do so would be fundamentally unfair and would violate his right to due process under the United States Constitution. The Government filed a Response to Defendant's Motion to Dismiss on March 17, 2000. The Court held a hearing on March 31, 2000, and, by Order entered that day, denied summarily Defendant's Motion to Dismiss. The Court thereafter entered a Memorandum Opinion and Amended Order on April 5, 2000, finding that Defendant failed to show that his prior deportation was fundamentally unfair, that he was denied judicial review of that deportation order or that he suffered any prejudice from any improprieties in the deportation proceedings.
FINDINGS OF FACT
Defendant is a citizen of the Republic of Mexico. On December 6, 1996, in the 79th District Court of Jim Wells County, Texas, Defendant pled guilty to and was convicted of possessing more than five but less than fifty pounds of marijuana in violation of Texas law. As a sentence for that crime, Defendant received a ten-year deferred adjudication and a $1,000 fine.
After his plea, the United States Immigration and Naturalization Service ("INS") took custody of Defendant and on December 11, 1997, issued an Order to Show Cause, charging Defendant with entering the United States without inspection. The INS took Defendant before an immigration judge ("IJ") on January 6, 1997, in Laredo, Texas, where Defendant admitted that he was a citizen of Mexico and had been convicted of possessing marijuana. By written "Order of the Immigration Judge" entered that day, the IJ found Defendant deportable, ordered Defendant deported to Mexico, and noted that Defendant "has made no application for relief from deportation nor does he appear eligible for any type of relief." The IJ further noted that Defendant waived any right to appeal the deportation order. On January 7, 1997, Defendant was removed from the United States to Mexico through Laredo, Texas.
The IJ's notation on the Order that "nor does he appear eligible for any type of relief" was hand-written on the typed "Order of the Immigration Judge."
On December 2, 1999, United States Border Patrol agents encountered Defendant in the El Paso International Airport in El Paso, Texas. Upon questioning Defendant, the agents determined that he was a citizen of Mexico and did not have permission from the Attorney General of the United States to be present in the United States. The agents took Defendant into custody and performed certain records checks, which revealed that Defendant previously was deported and had a controlled substance conviction in December 1996. Thereafter, Defendant was charged with illegal reentry into the United States in violation of 8 U.S.C. § 1326(a) and (b)(2).
Title 8 U.S.C. § 1326 provides in relevant part, as follows:
(a) In general
Subject to subsection (b) . . ., any alien who —
(1) 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 thereafter
(2) enters, attempts to enter, or is at any time found in the United States, unless
(A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act, shall be fined under Title 18, or imprisoned not more than 2 years, or both.
(b) Criminal penalties for reentry of certain removed aliens Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection —
. . . .
(2) whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such Title, imprisoned not more than 20 years, or both[.]
CONCLUSIONS OF LAW
The Indictment in this cause charges Defendant with violating 8 U.S.C. § 1326, which makes it a crime for an alien to enter the United States after being deported at some earlier time. For the Court to find Defendant Rosalio Perez-Gonzalez guilty of this crime, the Government must prove each of the following beyond a reasonable doubt:
(1) that Defendant was an alien at the time alleged in the Indictment
(2) that Defendant previously had been denied admission, excluded, deported or removed from the United States;
(3) that thereafter, Defendant entered, attempted to enter, or was found present unlawfully in the United States; and
(4) that Defendant had not received the consent of the Attorney General of the United States to apply for readmission to the United States since the time of Defendant's previous deportation.
The Court finds that the Government has proven beyond a reasonable doubt that Defendant was an alien at the time alleged in the Indictment; that Defendant previously had been deported from the United States; that thereafter Defendant was found present unlawfully in the United States; and that Defendant had not received the consent of the Attorney General of the United States to apply for readmission to the United States since the time of Defendant's previous deportation.
Accordingly, the Court HEREBY FINDS Defendant Rosalio Perez-Gonzalez GUILTY BEYOND A REASONABLE DOUBT of the crime charged in the Indictment in this cause.