United States District Court, E.D. New York
MEMORANDUM AND ORDER ADOPTING REPORT AND
ROSLYNN R. MAUSKOPF, UNITED STATES DISTRICT JUDGE.
Leonardo Hanson, a/k/a Dillon Bussell, is charged by
indictment with illegal reentry pursuant to 8 U.S.C.
§§ 1326(a) and (b)(2). He moves to dismiss the
indictment pursuant to, inter alia, 8 U.S.C. §
1326(d), claiming that his removal from the United Stales
pursuant to a removal order issued by an Immigration Judge
(the "IJ") on March 22, 2012 was fundamentally
Court referred Hanson's motion to Magistrate Judge Robert
M. Levy for a Report and Recommendation C'R&R").
Following full briefing, oral argument, post-argument
supplemental briefing, and additional oral argument.
Magistrate Judge Levy issued his R&R, recommending that
Hanson's motion be denied. Hanson filed timely
objections, and the government responded thereto.
district court may "accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
magistrate judge." Fed. R. Crim P. 59(b)(3); 28 U.S.C.
§ 636(b)(1). The district judge "'shall make a
de novo determination of those portions of the
Report and Recommendation to which objection is made."
28 U.S.C. § 636(b)(1); see Thomas v. Arn, 474
U.S. 140, 149-50 (1985); United States v. Male
Juvenile, 121 F.3d 34, 38 (2d Cir. ] 997). Upon de
novo review of the R&R here, including the report,
the record, applicable legal authorities, and all objections
and replies, the Court adopts the Magistrate Judge's
thorough and well-reasoned R&R in its entirety, and
denies Hanson's motion to dismiss the indictment.
Court assumes familiarity with the facts, procedural history,
and background of this matter as set forth in the R&R,
none of which is in dispute. Put briefly, Hanson seeks to
collaterally challenge the validity of the removal order upon
which the current charge of illegal reentry is predicated.
"The alien bears the burden of showing that entry of the
removal order was fundamentally unfair." United
States v. Daley, 702 F.3d 96, 100 (2d Cir. 2012);
see also 8 U.S.C. § 1326(d)(3). Hanson makes
two assertions in support of the claim that his removal order
was fundamentally unfair: first, the IJ did not inform Hanson
that he was eligible for voluntary departure, and second, the
IJ did not ensure that Hanson's waiver of his right to
representation at his own expense was knowing and voluntary.
Magistrate Judge correctly concluded that Hanson was not
eligible for voluntary departure pursuant to 8 U.S.C. §
1229c(a) because Hanson was previously convicted of an
"aggravated felony" - the crime of Robbery in the
Third Degree under New York Penal Law § 160.05. Thus,
the Magistrate Judge properly concluded that the failure to
advise Hanson regarding this form of discretionary relief was
not error, prejudicial, or fundamentally unfair. United
States v. Copeland, 376 F.3d 61, 70 (2d Cir. 2004)
("To show fundamental unfairness under §
1326(d)(3), a defendant must show both a fundamental
procedural error and prejudice resulting from that
error.") (internal citation and quotation marks
regard to Hanson's waiver of his right to representation
at his own expense, the Magistrate Judge reviewed the
proceedings before the IJ and correctly found that the IJ
gave Hanson ample time and guidance with regard to his
rights, and fully complied with the requisites of the Due
Process Clause, the immigration statutes, and the relevant
regulations in effect at the time. In that way, the
Magistrate Judge ensured that Hanson knowingly and
intelligently waived his right to counsel. See 8
C.F.R. § 1240.10(a) (2012); Picca v. Mukasey,
512 F.3d 75, 78 (2d Cir. 2008) (holding that failure to
follow established procedures can constitute reversible error
without any showing of prejudice, as "the right to
counsel concerns fundamental notions of fair play underlying
the concept of due process .. . .") (internal citation
and quotation marks omitted).
advances objections to the Magistrate Judge's conclusions
on both prongs of his motion. They are, in essence, a
"second bite at the apple, " as they merely recite
the same arguments made before the Magistrate Judge, and they
contain no case law. While such objections are typically
subject to clear error review, the Court has conducted a full
de novo review of Hanson's objections, and finds
them to be without merit for the same reasons advanced by the
asserts in his objections, as he did before the Magistrate
Judge, that his two prior convictions for Robbery in the
Third Degree under New York law do not constitute
"aggravated felonies" either as "theft
offenses" under 8 U.S.C. § 1101(a)(43)(G) or as
"crimes of violence" under 8 U.S.C. §
1101(a)(43)(F). On that basis, Hanson argues that he is
eligible for voluntary departure at the time of his removal
from the United States and that the IJ was obligated to
advise him of that eligibility. The Magistrate Judge did not
reach the issue of whether the crime constitutes a crime of
violence, as he found that it constitutes a theft offense. In
his objections, Hanson continues to complain that "the
R&R does not address all of the issues raised by Mr.
Hanson" including ':Mr. Hanson's
crime of violence arguments." (Hanson Obj. (Doc. No. 43)
at 1.) That Hanson presses this argument "ignores the
fact that conviction of a 'theft offense' ... is an
independent basis for removal under section 1101(a)(43)(g)
irrespective of whether the offense was also a 'crime of
violence' under section 1101(a)(43)(F)."
Halkewicz v. AG of the United States, 350 Fed.Appx.
667, 671 (3d Cir. 2009).
parties agree on the generic definition of a theft offense
within the meaning of § 101(a)(43)(G) as set forth by
the BIA: "the taking of, or exercise of control over,
property without consent whenever there is criminal intent to
deprive the owner of the rights and benefits of ownership,
even if such deprivation is less than total or
permanent." Matter of Ligurian de Fatima
Garcia-Madruga, 24 I&N Dec. 436 (BIA 2008). The BIA
has further explained that "the taking of property
without consent is required for a §
1101(a)(43)(G) theft offense, '" in contrast to an
"offense that involves 'fraud or deceit'"
under § 1101(a)(43)(M), which "ordinarily involves
the taking or acquisition of property with consent that has
been fraudulently obtained." Id. at 440
(emphasis in original).
argues in his objections, as he did before the Magistrate
Judge, that because robbery by definition must be committed
"in the course of committing a larceny, " and
because a larceny encompasses fraudulent consensual takings,
third degree robbery cannot be a theft offense. But as the
Magistrate Judge correctly noted, "defendant fails to
take into account the way in which robbery is distinguishable
from larceny: it requires the use or a threat to use physical
force. Without resorting to an exercise in creative legal
imaginations the use or threat of physical force is
incongruous with a consensual taking." (R&R (Doc.
No. 42) at 9.) Thus, it is no surprise that the Second
Circuit has consistently held that the varying degrees of
robbery under New York law are theft offenses within the
meaning of 8 U.S.C. § 1101(a)(43)(G). SeeBrawn v. Ashcroft,360 F.3d 346, 354 (2d Cir. 2004)
("The amended definition of aggravated felony, which
includes theft offenses accompanied by a term of imprisonment
of at least one year, 8 U.S.C. § 1101(a)(43)(G), and
attempt to commit such an offense, id. §
1101(a)(43)(U), therefore encompasses [petitioner's] 1994
convictions [for attempted second-degree robbery].")
(italics added); Perez v. Greiner,296 F.3d 123, 126
n.5 (2d Cir. 2002) ("Robbery in the second degree is an
'aggravated felony, ' 8 U.S.C. §
1101(a)(43)(G)... ."); United Slates v.
Fernandez-Antonio,278 F.3d 150, 160 (2d Cir. 2002)
(finding that defendant "pleaded guilty to attempted
robbery in the third degree, a crime that meets ...