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United States v. Lozano-Esparza

United States District Court, W.D. Oklahoma

March 19, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
LUIS OMAR LOZANO-ESPARZA, a/k/a LUIS OMAR LOZANO, Defendant.

          ORDER

          CHARLES B. GOODWIN United States District Judge.

         Now 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.

         BACKGROUND

         On 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.

         Defendant 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.

         ANALYSIS

         Even 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).

         Defendant 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.

         In 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).

         Defendant's 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.

         First, 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)).

         The 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 ...


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