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United States v. Lopez-Candelaria

United States District Court, S.D. Alabama, Southern Division

October 26, 2017

UNITED STATES OF AMERICA
v.
AMILCAR LOPEZ-CANDELARIA, Defendant.

          ORDER

          CALLIE V. S. GRANADE, SENIOR UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant's Motion to Dismiss the Indictment for a due process violation (Doc. 26) and the United States' Response (Doc.28).

         Defendant Lopez-Candelaria was named in an indictment charging Illegal Entry after Deportation in violation of Title 8, United States Code, Section 1326(a) and (b)(2).

         Title 8, United States Code, Section 1326(a) provides:

(a) In general Subject to subsection (b), any alien who--
(1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter
(2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act,
shall be fined under Title 18, or imprisoned not more than 2 years, or both.

         The Indictment further alleges the penalty to be governed by §1326(b)(2):

Notwithstanding subsection (a), in the case of any alien described in such subsection- (2) whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such title, imprisoned not more than 20 years, or both.

Title 8, U.S.C. § 1101(a)(43)(F) defines the term “aggravated felony” as . . . a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year.” 18 U.S.C. § 16 defines “crime of violence” as

(a) An offense that has as an element the use, attempted use or threatened use of physical force against the person or property of another, or
(b) Any other offense that is a felony and that, by its nature, involved a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

         Defendant argues that the Indictment violates his rights under the Due Process Clause of the Fifth Amendment to the Constitution because the sentencing portion of the statute charged is void for vagueness, citing Johnson v. United States, 135 S.Ct. 2551, 2557 (2015). In Johnson, the Supreme Court held that imposing an increased sentence under the residual clause of the Armed Career Criminal Act (ACCA) violates the Constitution's guarantee of due process. Although an analogy can be drawn between the ACCA's residual clause and 18 U.S.C. § 16(b) -- which might call into question any sentence imposed that relies on an application of an enhancement grounded in § 16(b)[1] in this case the applicable section defining crime of violence is § 16(a), not § 16(b). This is so because the prior conviction that potentially qualifies this defendant for the enhancement is a misdemeanor conviction out of Georgia for the offense of “battery of a pregnant woman.”[2] Because that offense is a misdemeanor, it cannot be considered a crime of violence under the residual clause, ยง 16(b), as that section requires that the offense be a felony to ...


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