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United States v. Morales

United States District Court, D. Minnesota

April 19, 2018

United States of America, Plaintiff,
v.
Raymundo Aulis Morales, Defendant.

          Dianne Dodd, United States Attorney for the Government.

          Bruce D. Nestor, De Leon & Nestor, LLC, for Defendant.

          MEMORANDUM OPINION AND ORDER

          SUSAN RICHARD NELSON, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This matter is before the Court for consideration of Defendant Raymundo Aulis Morales' Objections [Doc. No. 33] (“Objs.”) to Magistrate Judge Becky R. Thorson's March 8, 2018 Report and Recommendation [Doc. No. 32] (“R&R”). The magistrate judge recommended the denial of Defendant's Motions to Dismiss [Doc. Nos. 17, 18]. For the reasons set forth below, the Court overrules Defendant's Objections and adopts the R&R in its entirety.

         II. BACKGROUND

         The R&R documents the relevant factual and procedural background of this case, and the Court incorporates it by reference. Briefly stated, the Government initiated administrative removal proceedings in 2005 after Defendant was convicted of robbery under Ohio Revised Code § 2911.02(A)(2). (Government's Consolidated Resp. to Def.'s Pre-Trial Mots. [Doc. No. 25] (“Gov't Resp.”), Exhibit A [Doc. No. 25-1] (Notice and Removal Order).) While Defendant was incarcerated for that offense, the Government served him with a Notice of Intent to Issue a Final Administrative Order on a Form I-851 (“Form I-851”).

         The Form I-851 stated that Defendant was deportable because he had been convicted of an aggravated felony, that Defendant had a right to counsel and could consult free legal counseling providers, and that Defendant had a right to “rebut the charges stated above (with supporting evidence)” and “seek judicial review of any final administrative order by filing a petition for review.” (Id. at 2.) Interpreter Joseph P. Laws attested that he explained the notice to Defendant in Spanish and English. (Id. at 3.) Defendant checked a box admitting the allegations in the Form I-851 and waiving the right to rebut the charges and to file a petition for review, and signed the Form I-851 on August 5, 2005. (Id.) The United States Department of Justice issued a Final Administrative Removal Order on August 18, 2005. (Id. at 1.) Defendant was deported to Mexico in 2007. (Indictment [Doc. No. 1].)

         Defendant subsequently reentered the United States and was found in November 2017. (Id.) On December 12, 2017, he was charged by Indictment with one count of unlawful reentry under 8 U.S.C. § 1326(a) and § 1326(b)(2). (Id.)

         Defendant filed two motions to dismiss. In the First Motion to Dismiss [Doc. No. 17], Defendant asks the Court to dismiss the case because the removal order is invalid and may not serve as the basis for an unlawful reentry charge. In his Second Motion to Dismiss [Doc. No. 18], Defendant asks the Court to determine as a matter of law that he is not guilty under 8 U.S.C. § 1326(b)(2) because his robbery conviction is not an aggravated felony. Magistrate Judge Thorson recommended denying the motions. The magistrate judge determined that Defendant has failed to demonstrate any of the three requirements for a collateral attack under 8 U.S.C. § 1326(d). (R&R, at 7-15.) The magistrate judge further determined that Defendant's Second Motion to Dismiss should be denied, because case law indicates that Defendant's prior conviction is an aggravated felony and because the motion concerns issues best addressed at sentencing. (Id. at 14 n.3.)

         III. DISCUSSION

         A. Standard of Review

         A party “may file and serve specific written objections to a magistrate judge's proposed findings and recommendations.” D. Minn. LR 72.2(b)(1). The district court will review de novo those portions of the R&R to which an objection is made, and it “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3); D. Minn. LR 72.2(b)(3).

         B. ...


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