United States District Court, D. Minnesota
Dodd, United States Attorney for the Government.
D. Nestor, De Leon & Nestor, LLC, for Defendant.
MEMORANDUM OPINION AND ORDER
RICHARD NELSON, UNITED STATES DISTRICT JUDGE
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.
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
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.
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).
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.)
Standard of Review
“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.