The opinion of the court was delivered by: Dennis Jacobs, Chief Judge:
(Argued: September 6, 2012
Before: JACOBS, Chief Judge, CARNEY, Circuit
Judge, and GLEESON, District Judge.*fn1
29 Defendant Courtney Daley appeals from the judgment of 0 the United States District Court for the Eastern District of 31 New York (Korman, J.), convicting him of illegal re-entry 32 under 8 U.S.C. § 1326, following a conditional plea. Daley 33 challenges the denial of his motion to dismiss the 1 indictment. The district court ruled that the entry of the 2 removal order against Daley in absentia was not 3 fundamentally unfair because there was no reasonable 4 probability that Daley would have obtained relief had he 5 received notice of the removal proceeding and been present.
6 Because the district court properly considered Daley's 7 completed criminal conduct in making this discretionary 8 determination, we affirm the judgment.
23 Defendant Courtney Daley appeals from the judgment of 24 the United States District Court for the Eastern District of 25 New York (Korman, J.), convicting him of illegal re-entry 26 under 8 U.S.C. § 1326, following a conditional plea. Daley 27 moved to dismiss the indictment on the ground that he was 28 given no notice of the 1998 removal proceedings after which 29 a removal order was entered in absentia. The United States 2 1 District Court for the Eastern District of New York (Korman, 2 J.) ruled that the entry of the removal order was not 3 fundamentally unfair because there was no reasonable 4 probability that Daley would have obtained relief had he 5 received notice of the removal proceeding and been present. 6 While his 1998 immigration proceedings were pending, 7 Daley was arrested for robbery under the Hobbs Act and 8 detained at the Metropolitan Detention Center in Brooklyn, 9 New York. Although he notified the Immigration and 10 Naturalization Service ("INS") of his new address, INS did 11 not properly process the address change and failed to notify 12 Daley of his ongoing immigration proceedings, so that he was 13 ordered removed in absentia.
14 Daley was removed to Jamaica, his country of origin, 15 but he subsequently returned to the United States. He was 16 arrested again--this time following a domestic altercation 17 with his estranged wife--and indicted for illegal re-entry 18 under 8 U.S.C. § 1326. He moved to dismiss the indictment 19 pursuant to 8 U.S.C. § 1326(d), on the ground that his 1998 20 removal order was fundamentally unfair because he was 21 removed in absentia. In order to show fundamental 22 unfairness, however, Daley had to show that, but for the 1 Government's error, there was a reasonable probability that 2 he would have obtained relief from the Immigration Judge 3 ("IJ"). The district court concluded that there was no such 4 probability. Daley ultimately entered a conditional guilty 5 plea that preserved his right to appeal the denial of his 6 motion to dismiss the indictment. Daley was sentenced to 30 7 months' imprisonment and timely appealed. For the reasons 8 discussed below, we affirm the judgment.
11 Daley was born in Kingston, Jamaica, in 1968, and came 12 to the United States at the age of fifteen as a lawful 13 permanent resident. In 1995, Daley was indicted in New York 14 for possession of a loaded firearm and bail jumping. After 15 he served a one-year sentence, INS initiated removal 16 proceedings on January 14, 1998, pursuant to Section 17 237(a)(2)© of the Immigration and Nationality Act (which 18 allows removal of any alien convicted of certain firearm 19 offenses).
20 At Daley's initial appearance before the IJ in February 21 1998, he was granted additional time to find a lawyer. A 22 preliminary hearing was eventually scheduled for September 1 18, 1998. In May 1998, however, Daley was arrested and 2 arraigned in the Eastern District of New York on federal 3 robbery charges under the Hobbs Act (18 U.S.C. § 1951). 4 Daley pled guilty on August 18, 1998, but that conviction 5 did not become final until March 1999.
6 During the summer of 1998--because of his Hobbs Act 7 arrest--Daley was held without bail at the Metropolitan 8 Detention Center ("MDC") in Brooklyn. At Daley's request, 9 his girlfriend notified the INS that he was in custody at 10 the MDC and submitted a change-of-address form on his 11 behalf. It was received by INS and listed Daley's full 12 name, alien registration number, and Bureau of Prisons 13 number, clearly indicating that Daley was now residing at 14 the MDC in Brooklyn.
15 INS somehow misplaced or mishandled this form. 16 Presumably because he was not informed of the date, Daley 17 failed to appear for his September 1998 hearing before the 18 IJ. At the hearing, INS suggested that Daley might be 19 incarcerated, and the IJ adjourned to permit INS counsel to 20 determine Daley's whereabouts. Daley did not appear at the 21 subsequent hearing on October 23, 1998, and INS wrongly 22 1 informed the IJ that Daley was not in federal or state 2 custody. The IJ ordered Daley removed in absentia. 3 Daley was subsequently sentenced to 37 months' 4 imprisonment for his Hobbs Act conviction, and upon 5 completing that sentence in January 2001, he was deported to 6 Jamaica. Within a year, Daley returned to the United 7 States.
8 In February 2010, Daley was again arrested--this time 9 for allegedly threatening his then-estranged wife in 10 Brooklyn. As a result of that arrest, immigration 11 authorities learned of Daley's unlawful presence in the 12 United States. A grand jury indicted Daley in the Eastern 13 District of New York for illegal ...