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United States v. Hernandez-Rios

United States District Court, S.D. Mississippi, Northern Division

August 2, 2019

UNITED STATES OF AMERICA
v.
FREDERICO HERNANDEZ-RIOS

          ORDER

          CARLTON W. REEVES, UNITED STATES DISTRICT JUDGE

         Before the Court are Frederico Hernandez-Rios' motions to dismiss the indictment. Docket Nos. 20, 21.

         I. Factual and Procedural History

          On July 1, 2010, in the Circuit Court of Orange County, Florida, Hernandez-Rios entered a plea of nolo contendere to charges of possession with intent to distribute cocaine and possession of drug paraphernalia. In October 2010, he was deported and removed from the United States under 8 U.S.C. § 1227(a)(2)(A)(iii), which makes deportable any alien convicted of an aggravated felony at any time after admission.

         On September 7, 2018, in this judicial district, a federal grand jury indicted Hernandez-Rios for illegal re-entry into the United States after being previously removed, in violation of 8 U.S.C. § 1326(a), (b)(2). On November 13, 2018, the Court entered an Order dismissing the case without prejudice for the Government's failure to comply with the Speedy Trial Act. See United States v. Hernandez-Rios, 3:18-CR-168-CWR-FKB, 2018 WL 5932864 (S.D.Miss. Nov. 13, 2018). Two days later, the Government filed a criminal complaint against Hernandez-Rios based on the same conduct. An indictment was returned on November 27, 2018. These two motions to dismiss followed.

         II. Discussion

         A. First Motion to Dismiss

         Hernandez-Rios now argues that this indictment should be dismissed with prejudice because the Court dismissed the previous indictment without prejudice in error. Specifically, he states that the Court did not analyze the factors that courts consider in deciding whether to dismiss with or without prejudice. These factors include “(1) the seriousness of the offense; (2) the facts and circumstances of the case which led to the dismissal; and (3) the impact of a reprosecution on the administration of [the Speedy Trial Act] and on the administration of justice.” 18 U.S.C. § 3162(a)(2).

         It turns out, however, that the previous indictment does not run afoul of the Speedy Trial Act. On June 10, the Government notified the Court of a recent decision from the Fifth Circuit, United States v. Vinagre-Hernandez, that bears on computing time under the Speedy Trial Act. In the case, the Fifth Circuit held that the time spent on the government's motion to detain the defendant was excluded from the 30-day limit under the Speedy Trial Act. 925 F.3d 761, 766 (5th Cir. 2019) (“This Circuit has stated that the Speedy Trial Act explicitly excludes periods of delay resulting from any pretrial motion . . .”) (quotation marks and citation omitted).

         The Speedy Trial Act requires indictments to be filed within 30 days of an arrest. See 18 U.S.C. § 3161(b). In its previous Order, this Court determined that 36 days had elapsed between the date of Hernandez-Rios' civil detention and the date of his indictment. Applying Vinagre-Hernandez, the Court should exclude from the Speedy Trial Act calculation the period between the Government's motion to detain and the date of ruling on that motion. The Government's motion to detain was pending between August 8, 2018 and August 14, 2018. Excluding this six- day period yields an elapsed period of 30 days between the arrest and the indictment. As such, the Court will leave as undisturbed its ruling without prejudice and this motion to dismiss is DENIED.

         B. Second Motion to Dismiss

         In his second motion to dismiss, Hernandez-Rios argues that this indictment should be dismissed because the underlying removal proceeding denied him due process and is therefore invalid. He asserts that the Government cannot use his previous removal to convict him of illegal reentry. He specifically contends that because he was mischaracterized as being previously convicted of an aggravated felony, his removal was unlawfully perfected through the expedited administrative removal proceeding, which prevented him from appearing before an Immigration Judge. In other words, Hernandez-Rios argues that when he was placed into the administrative removal process as opposed to the judicial removal process, he was denied due process and had no means of receiving judicial review of his removal.[1] In the alternative, Hernandez-Rios argues that the indictment is void for vagueness because the definition of ‘conviction' in the Immigration and Nationality Act (INA) is unconstitutionally vague. On July 1, 2019, the Court heard oral argument on this motion.

         In order for Hernandez-Rios to challenge the validity of the underlying removal, the statute requires him to first demonstrate “that (1) [he] 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 [him] of the opportunity for judicial review; and (3) the entry of order was fundamentally unfair.” 8 U.S.C. § 1326(d).

         i. ...


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