United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN United States District Judge.
before the Court is Defendant's Motion to Withdraw Guilty
Plea (Doc. No. 22), in which Defendant asks to withdraw his
plea of guilty in order to move to dismiss the charge, set
forth in the Indictment (Doc. No. 1), that he violated 8
U.S.C. § 1326(a) by entering the United States without
authorization after having previously been removed. The
United States has responded (Doc. No. 27), opposing both the
Motion to Withdraw Guilty Plea and the proposed motion to
dismiss. Following briefing, the case was transferred to the
undersigned. The Motion is denied.
January 15, 2013, Defendant-a Mexican citizen unlawfully
residing in the United States at the time-was arrested in
Oklahoma City for drug possession. Doc. No. 27-1. The next
day, he was served with a notice to appear before an
immigration judge regarding possible removal from the
country. See Doc. No. 22-1, at 17-18. This notice to
appear did not specify a time or place for the hearing.
See id. at 17. Nevertheless, Defendant signed the
form and eventually attended his immigration hearing via
video teleconference on September 3, 2014. See id.
at 18; Doc. No. 27-3. At that hearing, Defendant was ordered
to be removed from the United States. See Doc. No.
27-3. Pursuant to that order, Defendant was physically
removed to Mexico on September 9, 2014. See Doc. No.
22-1, at 12.
thereafter was found in the United States and, on March 20,
2018, indicted for one count of illegal reentry in violation
of 8 U.S.C. § 1326(a). See Indictment.
Defendant pled guilty to this charge on April 26, 2018, and
the Court accepted his guilty plea. Doc. Nos. 14, 29. A
sentencing hearing was originally set to follow but was
stricken when Defendant moved to withdraw his guilty plea.
Doc. Nos. 23, 24.
though “a criminal defendant does not have an absolute
right to withdraw a plea of guilty, a request to withdraw
such a plea made before imposition of sentence should be
considered carefully and with liberality.” United
States v. Hancock, 607 F.2d 337, 337 (10th Cir. 1979).
Here, because there was no plea agreement, and the Court has
accepted Defendant's guilty plea but not yet sentenced
him, he may only withdraw his guilty plea if he “can
show a fair and just reason for requesting the
withdrawal.” Fed. R. Crim. P. 11(d)(2)(B); see
United States v. Black, 201 F.3d 1296, 1299 (10th Cir.
2000) (explaining that the burden lies with the defendant to
demonstrate “a fair and just reason” that would
permit withdrawal of guilty plea). In making this
determination, courts consider the following factors:
(1) whether the defendant has asserted his innocence; (2)
whether withdrawal would prejudice the government; (3)
whether the defendant delayed in filing his motion, and if
so, the reason for the delay; (4) whether withdrawal would
substantially inconvenience the court; (5) whether close
assistance of counsel was available to the defendant; (6)
whether the plea was knowing and voluntary; and (7) whether
the withdrawal would waste judicial resources.
United States v. Byrum, 567 F.3d 1255, 1264 (10th
Cir. 2009) (internal quotation marks omitted).
addresses only the first of these factors, arguing that the
September 3, 2014 removal order is void under Pereira v.
Sessions, 138 S.Ct. 2105 (2018), and therefore he cannot
now be guilty of violating § 1326(a). See
Def.'s Mot. at 1-8 (citing United States v.
Virgen-Ponce, 320 F.Supp.3d 1164 (E.D. Wash. 2018)).
Defendant's argument for withdraw of his plea, then,
turns on whether he has, as he contends, an “absolute
defense” to the charge of illegal reentry. Concluding
that the proffered defense is not meritorious, the Court
denies the motion to withdraw the plea of guilty.
Pereira, the Court concluded that a notice to appear
that fails to designate a specific time or place for the
removal proceeding is deficient under 8 U.S.C. § 1229(a)
and, therefore, does not trigger the “stop time”
rule under the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”). See
Pereira, 138 S.Ct. at 2109-10. Soon thereafter, in
Virgen-Ponce, the U.S. District Court for the
Eastern District of Washington held that a similarly
deficient notice to appear divested the immigration court of
jurisdiction, rendering its subsequent removal order void,
and therefore that removal order could not support a
subsequent charge of illegal reentry under § 1326(a).
See Virgen-Ponce, 320 F.Supp.3d at 1166. Since
Virgen-Ponce, some courts have agreed and
others-including at least three judges of this Court-have
disagreed. Compare United States v. Rojas-Osorio,
No. 17-CR-507-LHK, 2019 WL 235042 (N.D. Cal. Jan. 16, 2019)
(granting motion to dismiss charge of violation of §
1326(a) where notice to appear in underlying removal
proceeding failed to provide specific time or place for
hearing), with United States v. Lozano, Nos.
4:18-CR-598, 4:18-CR-522, 2019 WL 224178 (S.D. Tex. Jan. 15,
2019) (denying motion to dismiss charge of violation of
§ 1326(a)); United States v. Chavez, No.
2:17-CR-40106-01-HLT, 2018 WL 6079513 (D. Kan. Nov. 21, 2018)
(same); United States v. Briones-Herrera, No.
CR-18-214-D, 2018 WL 5315211 (W.D. Okla. Oct. 26, 2018)
(DeGiusti, J.) (same); United States v.
Hernandez-Velasco, No. CR-18-82-D, 2018 WL 5622285 (W.D.
Okla. Oct. 30, 2018) (DeGiusti, J.) (same), appeal
docketed, No. 19-6012 (10th Cir. Jan. 30, 2019);
United States v. Ibarra-Rodriguez, No. CR-18-190-M,
2018 WL 4608503 (W.D. Okla. Sept. 25, 2018) (Miles-LaGrange,
J.) (same); United States v. Munoz-Alvarado, No.
CR-18-171-C, 2018 WL 4762134 (W.D. Okla. Oct. 2, 2018)
(Cauthron, J.) (same).
argument depends on two conclusions: first, that a removal
order that follows from a deficient notice to appear is void
for lack of jurisdiction and, second, that in such
circumstances a person accused of illegal reentry need not
make the particular showings required by § 1326(d) to
collaterally attack the underlying removal order. The Court
disagrees in both respects.
the Court finds that the September 3, 3014 removal order was
not void for lack of jurisdiction. At issue in
Pereira was a provision in IIRIRA that allows for
cancellation of removal from the United States if a
noncitizen has been physically present in the country for a
continuous period of 10 or more years. See 8 U.S.C.
§ 1229b(b)(1). In Pereira, the Supreme Court
considered whether the “stop-time rule”-which
states that the period of continuous physical presence ends
when the noncitizen “is served a notice to appear under
§ 1229(a), ” id. §
1229b(d)(1)-applies if the notice to appear does not, as
expressly required by the statute, state the specific
“time and place at which the [removal] proceedings will
be held.” Id. § 1229(a)(1)(G)(i). The
Supreme Court held that “[a] putative notice to appear
that fails to designate the specific time or place of the
noncitizen's removal proceedings is not a ‘notice
to appear under section 1229(a),' and so does not trigger
the stop-time rule.” Pereira, 138 S.Ct. at
2113-14 (quoting 8 U.S.C. § 1229b(d)(1)).
Supreme Court in Pereira did not address
jurisdiction in a removal proceeding. Courts that have found
a removal order void for lack of subject-matter jurisdiction
rely on both Pereira's statement that a notice
to appear that does not provide a time or place for the
removal hearing “is not a notice to appear under
section 1229(a), ” id. at 2114 (internal
quotation marks omitted), and 8 C.F.R. §
1003.14(a)'s regulatory prescription that
“[j]urisdiction vests. . . when a charging
document” such as a notice to appear “is filed
with the Immigration Court.” See,
e.g., Rojas-Osorio, 2019 WL 235042, at *10
(“A deficient Notice to Appear does not constitute the
appropriate charging document that vests the immigration
court with ...