United States v. Calderon-Nonbera

UNITED STATES OF AMERICA, Plaintiff, v. JUAN L. CALDERON-NONBERA, aka “Juan Calderon” and “Juan Louis Calderon, ” Defendant.

No. 2:19-cr-00725-ODW

United States District Court, C.D. California

August 20, 2021

ORDER DENYING MOTION TO DISMISS [21]

OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

On or about August 4, 2019, Defendant Juan Calderon-Nonbera, an alien who has been officially deported and removed from the United States, was found in Los Angeles County after re-entering and remaining in the United States without permission. (Indictment 1, ECF No. 1.) He was charged with violating 8 U.S.C. §§ 1326(a) & (b)(2) “Illegal Alien Found in the United States Following Deportation.” (Id.) The Court granted Defendant's motion to dismiss the indictment but temporarily stayed the dismissal order. (See Mot. to Dismiss (“Motion” or “Mot.”), ECF No 21.) On the Government's motion, the Court now reconsiders Defendant's motion to dismiss. Following further review, and for the reasons discussed below, the Court DENIES Defendant's Motion.

II. BACKGROUND

Defendant is an alien who has previously been officially deported and removed from the United States on at least seven occasions: December 19, 2002; July 3, 2003; June 2, 2010; June 27, 2016; February 17, 2019; June 1, 2019; and July 15, 2019. (Indictment 1.)

A. Initial Removal

In April 2002, Defendant was arrested by Los Angeles Police Department (“LAPD”) officers and charged with drug possession, forgery, and driving without a license. (Opp'n Mot. Dismiss (“Opp'n”) 7, ECF No. 30; Decl. of Lyndsi Allsop (“Allsop Decl.”) Ex. B (“Rap Sheet”) 0424-25, ECF No. 30-1, 30-2^[1].) He pleaded guilty in June 2002 and was convicted on all counts. (Allsop Decl. Ex. H (“Conviction Rec.”) 0443.) He was subsequently charged with being an Alien Present in the United States without Admission or Parole, served with a Notice to Appear, and ordered removed after removal proceedings conducted by an Immigration Judge, on December 19, 2002. (Allsop Decl. Ex. C (“June 2019 ICE Rec.”) 0038.)

B. Subsequent Removals

On an unknown date, Defendant reentered the United States without inspection. (Id.) On April 10, 2003, LAPD arrested him and charged him with felony possession of a controlled substance. (Rap Sheet 0425.) His probation from the felony forgery conviction was revoked and he was sentenced to sixteen months' imprisonment. (Conviction Rec. 0444-47.) While incarcerated, he was served with a Notice of Intent to Reinstate a Prior Removal Order (Form I-871), his 2002 removal order was reinstated, and he was removed from the United States on July 3, 2003. (June 2019 ICE Rec. 0038.) Defendant reentered the United States at an unknown time without inspection. (See id.) This pattern of unauthorized reentry, arrest, and removal has replayed at least five additional times.

• On November 25, 2007, LAPD arrested Defendant for felony grand theft. (See Rap Sheet.) While he was incarcerated, his 2002 removal order was reinstated and he was removed from the United States on June 2, 2010. (See Opp'n 11 (citing June 2019 ICE Rec.).)

• On March 3, 2011, LAPD arrested him for driving without a license. In June 2016, while he was incarcerated for another offense, his 2002 removal order was reinstated and he was removed from the United States on June 27, 2016. (See Id. at 12 (citing Rap Sheet & June 2019 ICE Rec.).) He reentered the United States without inspection on or about January 2017. (See Id. at 13 (citing June 2019 ICE Rec.).)

• On January 31, 2019, Culver City Police Department officers arrested Defendant for drug possession. (See Id. (citing Rap Sheet).) On February 16, 2019, immigration authorities took him into custody following an LAPD traffic stop and arrest, his 2002 removal order was reinstated, and he was removed on February 17, 2019. (See Id. at 13-14 (citing June 2019 ICE Rec.).) He reentered the United States later that same month without inspection. (Id.)

• On June 1, 2019, Alhambra Police Department officers arrested Defendant and charged him with drug offenses. (See id at 14 (citing Rap Sheet).) Immigration authorities reinstated his 2002 removal and removed him from the United States on June 1, 2019. (See Id. at 14 (citing June 2019 ICE Rec.).)

• On July 14, 2019, immigration authorities in San Bernardino arrested Defendant and charged him with Alien Present without Permission or Parole. (See Id. at 15 (citing Rap Sheet).) His 2002 removal order was reinstated and he was again removed from the United States on July 14, 2019. (See Allsop Decl. Ex. A (“July 2019 ICE Rec.”).)

C. Indictment and Relevant Procedural History

On or about August 4, 2019, Defendant was again found in Los Angeles County without inspection or permission, following an arrest for vehicle theft. (See Indictment.) On November 26, 2019, the Government filed a single-count indictment charging Defendant with violating 8 U.S.C. §§ 1326(a) & (b)(2), ^[2] “Illegal Alien Found in the United States Following Deportation.” (Id.)

Defendant moved to dismiss the indictment on the basis of what he characterized as the holding in Tomczyk v. Wilkinson, 987 F.3d 815, rehearing en banc granted and opinion vacated, 2 F.4th 793 (9th Cir. July 6, 2021). (See Mot. 1.) He argued that Tomczyk held “[a]n inadmissible noncitizen who is not subject to an advance permission requirement . . . does not violate [8 U.S.C.] § 1326 by reentering the United States, ” and therefore he is not guilty of violating 8 U.S.C. § 1326 as a matter of law, pursuant to Tomczyk , “because he was not subject to [an] advance-permission requirement” under 8 U.S.C. § 1182(a)(9) at the time of his last reentry in 2019. (Id. at 3.) After hearing argument from the parties, the Court granted Defendant's Motion but stayed the dismissal order to permit the Government time to appeal. (ECF No. 40.) The Government moved for reconsideration. (Mot. Recons., ECF No. 44.) The Court granted the Government's motion and now reconsiders Defendant's motion to dismiss, in light of the parties' oral argument and extensive briefing.

Notably, after the Government filed its motion for reconsideration, the Ninth Circuit granted rehearing en banc in Tomczyk and vacated the opinion on which Defendant relied. See Tomczyk v. Wilkinson, 2 F.4th 793 (9th Cir. 2021). Defendant now characterizes the holding in Tomczyk as “unrelated” to the issues here; he argues Tomczyk's vacatur and rehearing do not impact his motion to dismiss because Tomczyk merely “helpfully” “rephrased” the plain statutory language of § 1326, which he contends still supports his position. (Opp'n Recons. 6-7, ECF No. 63.)

III. LEGAL STANDARD

“A party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.” Fed. R. Crim. P. 12(b)(1). Courts may grant a pretrial motion to dismiss an indictment when it seeks to resolve questions of law, not fact. United States v. Schulman, 817 F.2d 1355, 1358 (9th Cir. 1987). “On a motion to dismiss an indictment for failure to state an offense, the court must accept the truth of the allegations in the indictment in analyzing whether a cognizable offense has been charged.” United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002).

IV. DISCUSSION

Defendant argues he is not guilty of violating § 1326(a), “Illegal Alien Found in the United States Following Deportation, ” as a matter of law under § 1326(a)(2)(B), because he was not subject to an advance consent requirement under § 1182(a)(9). (See Mot. 3-4.) Upon further review of the statutes' language and relevant authority, the Court finds Defendant's argument must fail. First, the affirmative defense of § 1326(a)(2)(B) is not available to him because he is not “an alien previously denied admission and removed, ” as that statutory language has been interpreted and applied by the Ninth Circuit. Second, even if he could invoke § 1326(a)(2)(B)'s affirmative defense, Defendant was subject to an advance consent requirement at the time of his latest reentry, both because § 1326 itself contains such a requirement and because reinstatement of his original 2002 removal order restarted the clock on the inadmissibility periods in § 1182(a)(9) on which Defendant relies. Finally, as the Ninth Circuit has vacated Tomczyk , it provides Defendant no support.^[3]

A. 8 U.S.C. § 1326

Section 1326(a) subjects to criminal penalties: [A]ny 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 . . . .

8 U.S.C. § 1326(a).

1. Elements of Charge-§ 1326(a)

Succinctly stated, § 1326 “provides criminal penalties for (1) any alien, who (2) has been removed from the United States, and (3) is later found in the United States without having first obtained the consent of the Attorney General to reapply for admission.” United States v Zepeda-Gonzalez, 611 Fed.Appx. 394, 395 (9th Cir. 2015) (citing United States v. Gondinez-Rabadan, 289 F.3d 630, 632-33 (9th Cir. 2002)); United States v. Ramirez-Valencia, 202 F.3d 1106, 1110 (9th Cir. 2000). The Indictment alleges, and Defendant does not dispute, that he is an alien previously deported and removed...