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United States District Court, S.D. New York

April 1, 2004.


The opinion of the court was delivered by: DEBORAH BATTS, District Judge


Defendant moves the Court to dismiss the Indictment pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure. Defendant has filed moving papers to which the Government has responded. There has been no reply, and the Court deems the Motion fully submitted.


  On June 4, 1992, Defendant Denise Henry ("Henry") pled guilty in United States District Court, Southern District of Florida, to the crime of importation of cocaine in violation of 21 U.S.C. § 952(a) and 960(a)(1). (Gov't Memo, of Law in Oppos., Exh. A at 2.) Henry is a citizen of Jamaica. (Id., Exh. B.)

  During her incarceration, Henry repeatedly sought a hearing from the Immigration and Naturalization Service ("INS"). The Bureau of Prisons ("BOP") and the INS, Henry alleges, ignored her requests. It was not until after her release from federal prison sometime in January 1996, that Page 2 she was finally afforded a hearing. (Def. Motion to Dismiss at 3). Henry was ordered removed at an August 15, 1997 hearing. (Gov't Memo, of Law in Oppos., Exh. A; Id., Exh. E; Id., Exh. G at 13.) She was subsequently deported to Jamaica by the INS on February 19, 1999 after her appeal was denied by the Board of Immigration Appeals on February 23, 1998. (Id., Exh. A at 2; Id., Exh. D.) According to the Government, at no time has Henry sought the permission of the United States Attorney General to reenter the country.

  Sometime in 2003, Special Agent Sheila Gudino ("Agent Gudino") of the United States Immigration and Customs Enforcement had begun to investigate whether Defendant had returned to the United States. (Gov't Memo. Of Law in Oppos, Exh. A at 2.) Gudino's investigation lead her to Queens where she found and arrested Henry. (Id.) The Government soon thereafter obtained a one count Indictment against Defendant, alleging that Henry had illegally reentered the United States in violation of 8 U.S.C. § 1326(a) and (b)(2).


 I. Motion to Dismiss the Indictment

  Pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure, Defendant Henry moves to dismiss the Indictment pursuant to the Apprendi v. New Jersey, 530 U.S. 466, 120 So. Page 3 Ct. 1348, 147 L.Ed.2d 435 (2000) and to the Due Process clause of the Fifth Amendment.

  "It is well settled that "an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.'" United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998)(quoting Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974)). The Indictment "need not set forth factors relevant only to the sentencing of an offender found guilty of the charged crime." Almendarez-Torres v. United States, 523 U.S. 224, 228, 118 So. Ct. 1219, 140 L.Ed.2d 350 (1998). "[D]ismissal of an indictment is justified to achieve either of two objectives: to eliminate prejudice to a defendant; or, pursuant to our supervisory power, to prevent prosecutorial impairment of the grand jury's independent role." United States v. Wang, 98 Cr. 199 (DAB), 1999 WL 138930 at *34 (S.D.N.Y. March 15, 1999) (citing United States v. Hogan, 712 F.2d 757, 761 (2d Cir. 1983) (citations omitted)). Page 4

  A. Apprendi Claims

  The Indictment charges Defendant with illegal reentry under 8 U.S.C. § 1326(a) and (b).*fn1 This statute prescribes different punishment schemes based in part on whether the illegal reentrant's removal from the United States was subsequent to a conviction for an aggravated felony. A conviction under 1326(a) carries a maximum penalty of two years in prison while a conviction under 1326(b) carries a twenty-year maximum. Page 5

  Defendant argues that the sole count of the Indictment actually charges her with two separate offenses in violation of Apprendi, which held that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 489, Because the fact of a prior conviction for an aggregated felony raises the maximum prison term from two to twenty years, Henry argues that the prior conviction is an element of 1326(b) (but not of 1326(a)) and must be proven beyond a reasonable doubt.

  The sweeping language, Henry further contends, logically overruled a prior Supreme Court decision in which the Court held that 8 U.S.C. § 1326(a) and (b) did not require that the fact of prior convictions be found by a jury beyond a reasonable doubt. In that case, the Supreme Court held that "Congress intended to set forth a sentencing factor in subsection (b)(2) and not a separate criminal offense." Almendarez-Torres, 523 U.S. at 235.

  However, the Supreme Court recognized in Apprendi the continued vitality of Almendarez-Torres, While a majority of justices now appear willing to reconsider the case's holding, Almendarez-Torres remains controlling law.*fn2 Thus, a conviction Page 6 for an aggravated felony prior to deportation need not be alleged in the indictment or proved beyond a reasonable doubt since it is not an element of the crime of illegal reentry. United States v. Mercedes, 287 F.3d 47, 58 (2d Cir. 2002); United States v. Latorre-Benavides, 241 F.3d 262, 264 (2d Cir. 2001) (per curiam). Accordingly, the Indictment does not charge two separate crimes, and Henry's Motion to Dismiss pursuant to Apprendi fails.

  B. Due Process Claim

  "Although the Supreme Court has not specifically delineated the procedural safeguards to be accorded aliens in deportation or removal hearings, it is well settled that the procedures employed must satisfy due process." United States v. Fernandez-Antonia, 278 F.3d 150, 156 (2d Cir. 2002)(citations omitted). This requires that individuals charged under § 1326 be permitted in certain circumstances to make a collateral attack on the validity of the deportation orders that also act as elements of illegal reentry. United States v. Mendoza-Lopez, 481 U.S. 828, 838-39, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987)("Depriving an alien of the right to have the disposition in a deportation hearing reviewed in Page 7 a judicial forum requires, at a minimum, that review be made available in any subsequent proceeding in which the result of the deportation proceeding is used to establish the element of a criminal offense."). Congress addressed this need in 8 U.S.C. § 1326(d), which states in pertinent part:

  In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a)(1) of this section or subsection (b) of this section unless the alien demonstrates that —


(1) the alien 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 the alien of the opportunity for judicial review; and
(3) the entry of the order was fundamentally unfair.
  Defendant argues that despite her repeated requests, the BOP and the INS did not conduct an immigration hearing while she was incarcerated between 1992-96, and only did so after her release in 1997, by which time a critical change in the law had occurred.*fn3 Page 8

  Due to the BOP's and INS's protracted delay, Henry argues, her due process rights were violated.

  The Government argues that Defendant has not fulfilled the statutory requirements under 1326(d) to challenge her deportation proceedings. In its papers, the Government contends that Defendant has not exhausted any administrative remedies; that the deportation proceedings deprived her of the opportunity for judicial review; and that the entry of the order was not fundamentally unfair.

  It is clear to the Court from the wording of the statute that if any of the three of the requirements are not met, Defendant cannot make a collateral attack under the law. The Second Circuit has recently held that an individual's failure to petition for a writ of habeas corpus under 28 U.S.C. § 2241, seeking relief from removal, barred a collateral attack under 1326(d). United States v. Gonzalez-Roque, 301 F.3d 39, 49-50 (2d Cir. 2002). The appellate panel reasoned that the defendant could not demonstrate that he was improperly denied the opportunity for judicial review, even if Page 9 IIRIRA itself eliminated direct judicial review since the "availability of habeas to challenge deportation orders has long been recognized" by federal courts. Id. at 49-50 (citation omitted).

  Accordingly, while Defendant's due process claim has merit,*fn4 she has failed to make the requisite showing under § 1326(d) that would entitle her to contest the initial removal order. Her Motion to Dismiss the Indictment for violations of due process, then, cannot stand and must be DENIED. Page 10


  Since Almendarez-Torres has not been overruled and since Defendant did not meet the requirements of § 1326(d) The Court DENIES Defendant's Motion to Dismiss the Indictment and schedules a new status conference for May 10, 2004 at 10:30 a.m. In the interests of justice, the Court excludes time from today until May 10, 2004.


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