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,
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)).
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