United States v. Ramirez

UNITED STATES OF AMERICA v. LEVY GUILLERMO RAMIREZ MEJIA, a/k/a: "Levy Ramirez," a/k/a: "Ramirez Levy,"a/k/a: "Levy Guillermo Ramirez-Mejia," a/k/a: "Levy Guillermo Mejia Ramirez,"a/k/a: "Levy Guillermo Ramirez," Defendant.

Criminal Case No. 1:15-cr-361

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

February 23, 2016

Hon. Liam O'Grady

Memorandum Opinion

Before the Court is defendant Levy Guillermo Ramirez-Mejia's motion to dismiss the indictment charging him with unlawful reentry of a removed alien, in violation of 8 U.S.C. § 1326(a). (Dkt. No. 12). The government opposes the motion (Dkt. No. 15), and the Court heard argument on February 11, 2016. For the reasons that follow, the motion is denied.

I. Background

Mr. Ramirez-Mejia is a citizen of Nicaragua who entered the United States illegally in 1990 at the age of six. In 2000, Ramirez-Mejia successfully applied for legal permanent resident status under the Nicaraguan Adjustment and Central American Relief Act. In 2004, at the age of 21, he was convicted in Prince William County of Assault and Battery on a Police Officer ("ABPO"), Va. Code § 18.2-57(C), and sentenced to five years' imprisonment with three years and seven months suspended. As a result of his conviction, Immigration and Customs Enforcement ("ICE") initiated removal proceedings. ICE charged Ramirez-Mejia with removability under the Immigration and Nationality Act ("INA") § 1227(a)(2)(A)(iii), which provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). Ramirez-Mejia, by and through counsel, moved to terminate the proceeding based, in part, on the classification of ABPO as an "aggravated felony" within the meaning of the statute.

On July 3, 2006, the Immigration Judge ("IJ") found Virginia's ABPO statute is an "aggravated felony" and ordered Ramirez-Mejia removed to Nicaragua.¹ Although Ramirez-Mejia had notice of the thirty-day time period within which to appeal the IJ's decision to the Board of Immigration Appeals ("BIA"), he declined to do so because his counsel advised him that an appeal would be futile. On July 12, his counsel faxed a copy of the IJ's decision to the Department of Homeland Security along with the instruction, "Deport my client please."

At some point, Ramirez-Mejia reentered the United States because in 2015 he was arrested for possession of a controlled substance and transferred to ICE custody. A grand jury subsequently returned an indictment charging him with unlawful reentry of a removed alien, in violation of 8 U.S.C. § 1326(a). Ramirez-Mejia now moves to dismiss the indictment on the ground that the underlying deportation order cannot withstand scrutiny.

II. Legal Framework

A. Collateral Attack on a Deportation Order Under § 1326(d)

Section 1326(a) of the INA "forbids an alien who once was deported to return to the United States without special permission." Almendarez-Torres v. United States, 523 U.S. 224, 226 (1998). In United States v. Mendoza-Lopez, the Supreme Court held that an alien prosecutedunder § 1326 "may assert in that criminal proceeding the invalidity of the underlying deportation order." 481 U.S. 828, 830, 838-39 (1987). Congress subsequently amended § 1326 to allow collateral attacks under certain, limited circumstances. It provides:

In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a)(1) of this section or subsection (b) of this section unless the alien demonstrates 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). Because the statute joins the requirements in the conjunctive, "a defendant must satisfy all three in order to prevail." United States v. El-Shami, 434 F.3d 659, 663 (4th Cir. 2005). If a defendant is successful, the court must dismiss the illegal reentry charge as a matter of law. Id.

B. Deportation Under § 1227(a)(2)(A)(iii)

Section 1227(a)(2)(A)(iii) of the INA provides that aliens convicted of an "aggravated felony" after admission are deportable. The INA broadly defines the term "aggravated felony" to "include a host of offenses," Moncrieffe v. Holder, 133 S. Ct. 1678, 1682 (2013), including "crime[s] of violence (as defined in section 16 of Title 18 . . .) for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(F). Section 16, in turn, defines "crime of violence" as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force 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. Subsection (b) is commonly referred to as the "residual clause."

In United States v. Carthorne, 726 F.3d 503 (4th Cir. 2013), the Fourth Circuit considered for the first time the question of whether ABPO in Virginia categorically qualifies as a crime of violence under a similar residual clause in the United States Sentencing Guidelines.² Looking to Virginia common law definitions of assault and battery, the court determined that ABPO "may be accomplished by the slightest touching or without causing physical injury to another." Id. at 514. Consequently, the court concluded that the "statute cannot, by reason of its elements, be viewed as presenting a serious potential risk of physical injury." Id.

C. The Impact of Johnson on Other Residual Clauses

As noted, the Fourth Circuit reached the question of ABPO's categorization in the context of the definition of "crime of violence" found in Section 4B1.2 of the Guidelines. The Guidelines' definition of "crime of violence" is substantively identical to the definition of "violent felony" in the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2). The Supreme Court recently held the ACCA's residual clause violated the Due Process Clause's prohibition on vagueness. Johnson v. United States, 135 S. Ct. 2551 (2015).

Section 16's residual clause employs language that is very similar to the ACCA's residual clause, but it is not "identical[]." United States v. Fuertes, 805 F.3d 485, 499 n.5 (4th Cir. 2015). For instance, the ACCA's residual clause contains four enumerated examples of violent felonies, while § 16(b) does not. Despite these variances, three courts of appeals have extended the Johnson Court's reasoning to § 16(b) and held it to be unconstitutionally vague.See United States v. Gonzalez-Longoria, No. 15-40041, 2016 WL 537612, at *9 (5th Cir. Feb. 10, 2016); United States v. Vivas-Ceja, 808 F.3d 719, 720 (7th Cir. 2015); Dimaya v. Lynch, 803 F.3d 1110, 1119 (9th Cir. 2015).

Another residual clause found in § 924(c), which imposes a mandatory minimum sentence on anyone who uses or carries a firearm during or in relation to a "crime of violence," has also been the subject of vagueness challenges following Johnson. As is relevant here, § 924(c)'s definition of "crime of violence" is identical to that found in § 16. The Sixth Circuit recently rejected Johnson's application to § 924(c) on the ground that § 924(c)'s residual clause is materially distinguishable from the clause at issue in Johnson and those differences place § 924(c)'s clause outside the reach of Johnson's rationale. United States v. Taylor, No. 09-5517, 2016 WL 537444, at *32 (6th Cir. Feb. 11, 2016).

The Fourth Circuit has not directly considered the constitutionality of § 16(b) or § 924(c)(3)(B) in light of Johnson. However, in a post-Johnson decision, the Fourth Circuit was faced with the question of whether sex trafficking by force, fraud, or coercion was categorically a crime of violence under § 924(c)(3). The defendant argued that the residual clause was void for vagueness following Johnson. Fuertes, 805 F.3d 485. Citing constitutional avoidance, the Fourth Circuit declined to reach the question. Id. at 499 n.5. Notably, however, the court stated that the Supreme Court did not have the occasion to consider § 924(c)(3)(B) and although the residual clause at issue in Johnson was "similarly worded," it is "not identically so." Id. District courts in this circuit have not reached § 16(b)'s constitutionality, but have upheld § 924(c)(3)(B). See United States v. Green, No. RDB-15-526, c, at *3 (D. Md. Jan. 21, 2016) (citing Fuertes and rejecting vagueness challenge to § 924(c)(3)(B)); United States v. McDaniels, No. 15-cr-171, 2015 WL 7455539, at *7 (E.D. Va. Nov. 23, 2015) (declining to reach the question, but notingthat "the Residual Clause of § 924(c)(3)(B) would likely not fail as unconstitutionally vague as it is distinguishable from the ACCA Residual Clause at issue in Johnson"); United States v. Walker, No. 15-cr-49, 2016 WL 153088, at *9 (E.D. Va. Jan. 12, 2016) (same).

III. Discussion

Ramirez-Mejia contends he can establish each of § 1326(d)'s prongs. He begins his argument with the third prong—fundamental unfairness—and the Court follows suit. Fundamental unfairness requires a dual showing that the defendant's "due process rights were violated by defects in the underlying deportation proceeding" and that the defendant "suffered prejudice as a result of the defects." United States v. Cisneros-Garcia, 159 F. App'x 464, 467 (4th Cir. 2005) (citing United States v. Wilson, 316 F.3d 506, 510 (4th Cir. 2003), overruled on other grounds by Lopez v. Gonzales, 549 U.S. 47 (2006)). Ramirez-Mejia identifies two alleged defects in the underlying proceeding, both directed at the IJ's categorization of ABPO as a "crime of violence" within § 16(b)'s residual clause and thus an "aggravated felony" under § 1227. First, ...