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United States v. Merino-Hernandez

United States District Court, D. Maryland, Northern Division

September 3, 2014

UNITED STATES OF AMERICA
v.
JUAN CARLOS MERINO-HERNANDEZ

Page 603

For Juan Carlos Merino-Hernandez, Defendant: Susan Hensler, LEAD ATTORNEY, Office of the Federal Public Defender, Baltimore, MD.

For USA, Plaintiff: Sandra Wilkinson, LEAD ATTORNEY, Rod J Rosenstein, Office of the United States Attorney, Baltimore, MD.

Page 604

MEMORANDUM OPINION

William D. Quarles, Jr., United States District Judge.

Juan Carlos Merino-Hernandez was charged with illegal reentry and other crimes.[1] Pending is the Defendant's motion to dismiss Count One of the superseding indictment, charging illegal reentry of an alien after a felony conviction. ECF No. 15. A hearing was held on August 5, 2014. For the following reasons, the Defendant's motion will be granted.

I. Background

A. Facts

Merino-Hernandez was born in Mexico and is a Mexican citizen. ECF No. 15 at 2. On July 29, 2011, he pled guilty to second degree assault and driving without a license in the Maryland District Court for Anne Arundel County. Id. He was sentenced to a term of imprisonment of five years, of which four years and six months was suspended. Id. at 2-3.

On September 8, 2011, a Notice of Intent to Issue a Final Administrative Removal Order (" Notice of Intent" ) was issued to the Defendant. ECF No. 15-3. The Notice of Intent states that " you are amenable to administrative removal proceedings." Id. The Notice of Intent also

Page 605

states: " You are deportable under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. 1227(a)(2)(A)(iii), as amended, because you have been convicted of an aggravated felony as defined in section 101(a)(43)(F) of the Act, 8 U.S.C. 1101(a)(43)(F)." Id. The Notice of Intent includes a section regarding " Your Rights and Responsibilities," advising that the Defendant has the right to be represented by counsel, and that he " must respond to the above charges in writing to the Department address provided on the other side of this form within 10 calendar days of service of this notice (or 13 calendar days if service is by mail)." Id.

The Notice of Intent also provided that, in his response, the Defendant may: " request, for good cause, an extension of time; rebut the charges stated above (with supporting evidence); [or] request an opportunity to review the government's evidence." Id. The Notice of Intent advises that the Defendant has the right to remain in the U.S. for 14 calendar days to file a ...


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