United States District Court, S.D. New York
April 1, 2004.
UNITED STATES OF AMERICA, -against- DENISE HENRY, Defendant
The opinion of the court was delivered by: DEBORAH BATTS, District Judge
MEMORANDUM & ORDER
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,
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.
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)).
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.
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
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
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
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
(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
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
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
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
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.