United States District Court, D. Maryland
ELLEN LIPTON HOLLANDER, District Judge.
In October 2014, a federal grand jury returned a one-count indictment against Agustin Lopez-Collazo, charging him with illegal reentry into the United States, without consent, after having been previously removed from the country following conviction of an aggravated felony, in violation of 8 U.S.C. § 1326(a) & (b)(2). ECF 1. Pursuant to 8 U.S.C. § 1326(d), Lopez-Collazo filed a Motion to Dismiss the Indictment, ECF 14 ("Motion" or "Motion to Dismiss"), with exhibits. In the Motion, which is a collateral attack on the prior order of removal, defendant maintains that he can establish the three elements required by 8 U.S.C. § 1326(d).
The Government opposes the Motion, ECF 24 ("Response") and has submitted exhibits. Defendant has replied. ECF 25 ("Reply"). And, with the consent of the Court, the Government supplemented its opposition to the Motion, ECF 36 ("Supplemental Response"), to which defendant responded. ECF 37 ("Supplemental Reply").
In addition, defendant has filed a Motion to Suppress Tangible and Derivative Evidence and Statements, ECF 13 ("Motion to Suppress"). The Government responded in ECF 24, and defendant replied. ECF 25.
The Court held an evidentiary motions hearing on April 23, 2015, see ECF 39, and heard oral argument on April 30, 2015. See ECF 43. For the reasons that follow, I will grant the Motion to Dismiss. And, because I will grant defendant's Motion to Dismiss, I need not decide defendant's Motion to Suppress.
I. Factual Background
A. Defendant's Entry to the United States & Maryland State Convictions
Lopez-Collazo was born in 1982 (ECF 24-5 at 2, 20) and is a citizen of Mexico. Defendant's native language is Spanish, ECF 25-5 at 3, and he has an eighth grade education. See ECF 24-4 at 6-7. Lopez-Collazo first entered the United States approximately sixteen years ago, at the age of sixteen. See Supplemental Reply, ECF 37 at 10. It appears that he entered without inspection, i.e., without permission.
On January 7, 2005, Lopez-Collazo pled guilty, in the Circuit Court for Talbot County, Maryland, Case No. K-04-8063, to Theft Under $500, in violation of Md. Code (2005 Supp.), § 7-104 of the Criminal Law Article ("C.L."). See ECF 24-5 at 14 (Maryland Sentencing Guidelines Worksheet); ECF 24-5 at 13 (Certificate of Presiding Judge). C.L. § 7-104 is titled "General theft provisions." It criminalizes a variety of means in which to commit the offense of theft, including "unauthorized control over property"; "unauthorized control over property by deception"; "possessing stolen personal property"; "control over property, lost, mislaid or delivered by mistake"; and "services available only for compensation."
The exhibits show that, on January 7, 2005, with the aid of an interpreter, defendant completed a written form titled "Examination of Defendant Prior to Acceptance of Guilty Pleas" ("Examination"), ECF 24-5. The Examination constituted the plea colloquy. Question 6 asked: "Can you understand, read and write the English language?" ECF 24-5 at 3. Lopez-Collazo answered: "No-Spanish is my native language. I have an interpreter present." Id. Question 14 specified the charge to which defendant pleaded guilty. It merely lists the case number, the count, the offense, i.e., "Theft Less Than $500.00, " and the maximum penalty. See also Question 28, ECF 24-5 at 8. Question 37 asked: "Do you wish to plead guilty because you are in fact guilty, because you believe it is in your best interest to plead guilty or for both of these reasons?" ECF 24-5 at 11. Defendant answered: "It is in my best interest." Id.
Defendant's attorney certified that the guilty plea was knowing and voluntary. ECF 24-5 at 12. In addition, the presiding judge, William Horne, certified that he "reviewed in detail all contents of this form orally with the Defendant." ECF 24-5 at 13. Further, he determined that defendant's plea to the charge in paragraph 14 of the Examination was knowing and voluntary. The judge also found a factual basis for the plea, based on "hearing a statement of facts...." ECF 24-5 at 13 ¶ 4. However, nothing in the plea documents submitted by the Government shows the factual basis for defendant's plea. See ECF 24-5 at 2-14.
According to the applicable Maryland Sentencing Guidelines Worksheet, Lopez-Collazo's plea was tendered in relation to an offense committed on October 16, 2003. See ECF 24-5 at 14. The "Statement of Probable Cause, " which does not appear as part of the plea colloquy, alleges that defendant cashed a forged check on October 16, 2003. See ECF 36-1 at 2 (Statement of Probable Cause); see also Response, ECF 24 at 1.
At the time of his guilty plea, Lopez-Collazo had no prior record. Id. at 14. He was sentenced to eighteen months imprisonment, with the suspension of all but time served from July 8, 2004, and three years of probation. Id. at 14, 18 (Probation/Supervision Order). In addition, Lopez-Collazo was ordered to pay restitution in the amount of $437.00. Id. at 15 (Restitution Order).
Sometime in 2006, Lopez-Collazo "and his U.S. citizen girlfriend had their first child, who is also a U.S. citizen." Supplemental Reply, ECF 37 at 10. In addition, "[s]he had a toddler from a prior relationship whom [defendant] was raising as his own." Id.
On December 1, 2006, Lopez-Collazo and his brother were involved in an altercation in Dorchester County, Maryland with officers of the Cambridge Police Department. ECF 24-4 at 11 ("Plea Colloquy & Sentencing"). Thereafter, on May 10, 2007, defendant appeared with counsel in the Circuit Court for Dorchester County, Maryland, in Case No. 09-K-07-012557, and pled guilty to Assault in the Second Degree under Md. Code (2007 Supp.), C.L. § 3-203. See ECF 24-3 at 1, 4 (Case History); Plea Colloquy & Sentencing, ECF 24-4. C.L. § 3-203(a) states: "A person may not commit an assault." Section 3-203(c)(3) provides that assault in the second degree of a law enforcement officer is a felony under State law, subject to a higher fine than assault of persons who are not law enforcement officers. Lopez-Collazo also pled guilty to driving without a license. ECF 24-3 at 5.
The plea colloquy was conducted in English, with the aid of an interpreter. ECF 24-4 at 5, 7. It appears that Lopez-Collazo answered requests for his name, home address, and age in English, on his own behalf. Id. at 6. However, he answered the remainder of the questions through an interpreter. ECF 24-4.
During the plea colloquy, the prosecutor set forth the facts the State would have proved if the case went to trial, as follows, ECF 24-4 at 10-11:
[O]n December 1st, 2006 Officers of the Cambridge Police Department responded to 501 Maryland Avenue for a fight. The Police would later learn that that was related to an attempted theft from the business at that location.
As Officers arrived at that location the Defendant Agustin Lopez entered a vehicle behind the driver's-in the driver's seat and locked the doors. As Officers approached the vehicle Mr. Lopez put the vehicle into drive and attempted to leave that location in the direction of Corporal David Satterfield. The Officer fearing for his safety was forced to jump out of the way of the vehicle. Another Officer entered the vehicle through a passenger side window and placed the vehicle into park to stop the vehicle.
Officers then pulled Mr. Lopez from the vehicle in an attempt to place him under arrest. And while doing so the Officers would testify that Mr. Lopez resisted that arrest by attempting to kick and strike them with his hands. Officer Satterfield would testify that he did not consent to being struck by the Defendant.
He would also testify that they later caused a Motor Vehicle Administration check to be done on Mr. Lopez's license status. And they would learn that he has in fact no Maryland Driver's License.
The Officers would testify that the Defendant Agustin Lopez is the person who struck him and did not have a driver's license. And those events occurred in Dorchester County.
During Lopez-Collazo's sentencing on the assault and license convictions (counts Five and Eleven), conducted the same day (May 10, 2007), the prosecutor stated that Lopez-Collazo's codefendant, Toro Lopez-Collazo, "had actually engaged in the assault on the Officers in the same episode" and, according to the prosecutor, "to a more serious degree...." ECF 24-4 at 12. He added that the codefendant was sentenced in State district court to three months for resisting arrest and sixty days "on a theft count, " and he requested for Lopez-Collazo a "sentence not to exceed that of the Codefendant." ECF 24-4 at 12.
During the same sentencing, Lopez-Collazo's attorney stated, id. at 12-14:
Your honor, I believe that that day there was a great deal of confusion. And Mr. Lopez's brother was at the time with Mr. Lopez. And the brother took beers and put them down his pants and attempted to steal them and remove them from the store without paying for them. Mr. Lopez the Defendant saw his brother doing this. And Mr. Lopez had come to purchase beer which he did so. And he went out to his car.
And it's my understanding that all he wanted to do was basically leave and not to be involved with what his brother was doing. And I'm not sure if the police thought he was the individual who had stolen the beer or not. And I wonder about that just because they actually-the police took the beer that Mr. Lopez had purchased and took it back to the store and returned it to the Clerk. So I think there may have been some confusion about what his involvement was inside the store as well. But I think having had an opportunity to reflect on it, it would have been better to stay there and speak to the police and clarify it rather than attempting to leave.
There was apparently a struggle because he was pulled from his car. And there was a struggle with police and Mr. Lopez actually received a broken nose and had to go to the hospital for treatment which I think also taught him probably a valuable lesson about how to interact with the police.
But Mr. Lopez has been in a relationship with Ms. King who is present today as is her essentially her stepfather. They have two children together. He works very hard. He works-currently he's working at Chesapeake House doing pretty much it sounds like anything they ask him to do as far as work in the kitchen or work on the grounds or whatever. And both Ms. King and her stepfather have told me that he is a very good father and spends a good deal of time with his children and helps to take care of them....
On his own behalf, through the aid of an interpreter, Lopez-Collazo stated: "I just want to say that I was not trying to do anything wrong. All I wanted to do was just the place [sic] and go with my children. Is all I wanted to do is spend time with my kids and take care of them. That's all." ECF 24-4 at 15.
Lopez-Collazo was sentenced to eighteen months imprisonment, with all but seventy-two days suspended, and placed on eighteen months probation. ECF 24-3 at 26 (Probation/Supervision Order).
B. Removal Proceeding, Reentry, Detainer & Indictment
Deportation Officer Patrick J. Kearns testified at the motions hearing. See ECF 48 ("Apr. 23 Hearing Transcript"), at 10-82. Kearns is employed by the Office of Immigration and Customs Enforcement ("ICE"), U.S. Department of Homeland Security. Id. at 10. In 2007, he was assigned to the Criminal Alien Program in Salisbury, Maryland. Id. at 12. His duties included the identification of foreign nationals in detention centers on the Eastern Shore of Maryland. Id. at 11. At the time, he was the sole deportation officer in that area, and he handled eight detention facilities. Id. at 12.
As part of his duties, Kearns routinely checked inmate rosters at various detention centers, ran record checks, and attempted to determine the status of non-citizens, i.e., whether they were in the United States legally. ECF 48 at 12-13. While defendant was in custody at the Dorchester County Detention Center, Officer Kearns learned of defendant's incarceration and his prior record. Id. at 14-17. He also determined that defendant had entered the country illegally. Id. at 20.
Officer Kearns testified that he is now, and was in 2007, proficient in Spanish. Id. at 19-20. He explained that it was his practice in 2007, as it is now, to converse with native Spanish speakers in Spanish, regardless of the individual alien's English abilities. Id. at 19, 52, 75. Although he could not recall any details regarding Lopez-Collazo's English language abilities at the time of their first encounter in 2007, he stated he would have interviewed defendant in Spanish. Id. at 18-19, 49.
On or before June 7, 2007, Officer Kearns prepared a "Notice of Intent to Issue a Final Administrative Removal Order." Id. at 45-46; ECF 14-1 ("Notice of Intent" or "NOI"). It was addressed to Lopez-Collazo, all in English. ECF 14-1. The Notice of Intent stated that ICE had determined that Lopez-Collazo was "amenable to expedited administrative removal proceedings, " pursuant to "section 238(b) of the Immigration and Nationality Act... [("INA")], 8 USC 1228(b)...." Id. It also alleged that Lopez-Collazo was not a U.S. citizen, that he was a native and citizen of Mexico, and that he entered the "United States at or near an unknown place, on or about an unknown date, " without admission or inspection. Id. Further, the NOI alleged that Lopez-Collazo was convicted on May 10, 2007, of "the offense of Assault in the 2nd degree, " in violation of C.L. § 3-203, and convicted on October 16, 2003,  of "Theft (less $500 value), " in violation of C.L. § 7-104. Id.
The Notice of Intent charged defendant as deportable under 8 U.S.C. § 1101(a)(43)(F) and (G). ECF 14-1 at 1. Title 8 U.S.C. § 1101(a)(43)(F) establishes that a "crime of violence (as defined in section 16 of title 18 of the United States Code...", with a term of imprisonment of at least one year, is an "aggravated felony" under the INA. Title 8 U.S.C. § 1101 (a)(43)(G) establishes that a "theft offense... or burglary offense" with a term of imprisonment of at least one year is an "aggravated felony" under the INA. The charges were predicated on the allegations described, respectively, for Second-Degree Assault and Theft Under $500. ECF 14-1. At the bottom of the "Charges" section, the Notice of Intent stated that ICE served the NOI "without a hearing before an Immigration Judge, " pursuant to "section 238(b)" of the INA. Id.
In addition, the Notice of Intent contained an explanation of Lopez-Collazo's "Rights and Responsibilities." ECF 14-1. That section stated, in part, id. :
You must respond to the above charges in writing to the Service address provided below within 10 calendar days of service of this notice (or 13 calendar days if service is by mail). In your response you may: request, for good cause, an extension of time; rebut the charges stated above (with supporting evidence); request an opportunity to review the government's evidence; admit deportability; and/or designate the country to which you choose to be removed....
You may seek judicial review of any final administrative order by filing a petition for review within 14 calendar days after the date such final administrative order is issued, or you may waive such appeal by stating, in writing, your desire not to appeal.
A box titled "Certificate of Service" indicates that Lopez-Collazo was personally served with the Notice of Intent on October 5, 2007. ECF 14-1. At the evidentiary hearing, Officer Kearns testified that his colleague, Kevin J. Towey, served Lopez-Collazo with the Notice of Intent. ECF 48 at 23-24; see also ECF 24-2; ECF 25-5 at 2 (showing full name of Officer Towey). It appears that Officer Towey signed the Certificate of Service. ECF 14-1. Of import here, the NOI indicates that Officer Towey "explained and/or served [the] Notice of Intent to the alien in the English language." Id. Officer Kearns stated that Officer Towey is able to communicate in Spanish, but Officer Kearns did not classify his colleague's skill level. ECF 48 at 50. When asked if Towey "speaks Spanish proficiently, " Kearns responded: "He is-I don't want to classify how he speaks Spanish, but he can communicate in Spanish." Id.
The Government did not call Officer Towey as a witness at the hearing. However, Towey remains an employee of the agency. Id. at 83. Kearns acknowledged that he talked to Towey about this case. Id. at 25.
The NOI is a two-sided document. ECF 48 at 24. The back side of the Notice of Intent contains four boxes with text. See ECF 25-5 at 2 ("Waiver"). The first is titled, in bold letters: "I ACKNOWLEDGE THAT I HAVE RECEIVED THIS NOTICE OF INTENT TO ISSUE A FINAL ADMINISTRATIVE REMOVAL ORDER." Id. It includes signature and date lines for a "respondent" and an "Officer." Id. Both Lopez-Collazo and Officer Towey signed on October 5, 2007. Id.
The second text box is titled: "I Wish To Contest." ECF 25-5 at 2. It contains four statements, each with a corresponding checkbox next to it. The four statements are: "I am a citizen or national of the United States"; "I am a lawful permanent resident of the United States"; "I was not convicted of the criminal offense described in allegation number 6 above"; "I am attaching documents in support of my rebuttal and request for further review." Id. Allegation number 6 in the Notice of Intent pertained only to Lopez-Collazo's conviction for Second-Degree assault. ECF 14-1. The second text box is blank. ECF 25-5 at 2. In other words, no check marks were placed next to any of the four statements.
The third text box is titled: "I Do Not Wish To Contest." It includes two statements, each with a checkbox next to it. ECF 25-5 at 2. The first statement says, id.:
I admit the allegations and charge in this Notice of Intent. I admit that I am deportable and acknowledge that I am not eligible for any form of relief from removal. I waive my right to rebut and contest the above charges and my right to file a petition for review of the Final Removal Order. I wish to be deported to...
The second statement says: "I also waive the 14 day period of execution of the Final
Removal Order." ECF 25-5 at 2. The checkboxes next to both statements in the third text box were checked, and both Lopez-Collazo and Officer Towey signed inside the third text box, with the same date as the date of service of the Notice of Intent, October 5, 2007. Id. The fourth text box provides an address for return of the form to ICE. Id.
In an Affidavit submitted to this Court, Lopez-Collazo avers that he spoke "very little" English in 2007. ECF 25-5 at 1. With respect to the Waiver itself, Lopez-Collazo also asserts that the Waiver "was never translated into Spanish"; that he "did not understand what he was signing"; and he did not know that he "had a right to challenge" the Removal Order. Id. Rather, he states: "I believed I was just signing a document I was required to sign by a government official." Id.
Officer Kearns testified that he is not familiar with the so-called categorical approach used by courts to determine whether a particular criminal offense constitutes an aggravated felony under the INA. ECF 48 at 44-45. He submitted certain State court documents and Lopez-Collazo's records of conviction to ICE's Office of Chief Counsel for review as to the legal sufficiency of the charges and removal. Id. at 21, 43-44, 79-80. However, he did not submit the guilty plea transcripts for either conviction. Id. at 82.
On October 19, 2007, ICE issued a "Final Administrative Removal Order" addressed to Lopez-Collazo. Removal Order, ECF 14-2. The Removal Order was signed by Marion Dillis, "Deputy Field Office Director" for ICE. Id. In the Removal Order, Dillis stated, id. :
Based on the allegations set forth in the Notice of Intent to Issue a Final Administrative Removal Order and evidence contained in the administrative record, I... make the following findings of fact and conclusions of law.... I... find that you have a final conviction of an aggravated felony as defined in sections 101(a)(43)(F) and 101(a)(43)(G) of [the Immigration and Nationality Act], and are ineligible for any relief from removal that the Attorney General may grant in an exercise of discretion. I further find that the administrative record establishes by clear, convincing, and ...