FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT January 5, 2021 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 20-2016 (D.C. No. 2:19-CR-01374-KG-1) BENJAMIN SANCHEZ-PORRAS, (D. N.M.) Defendant - Appellant. _________________________________ ORDER AND JUDGMENT * _________________________________ Before HARTZ, McHUGH, and CARSON, Circuit Judges. _________________________________ Benjamin Sanchez-Porras appeals from a district court order that denied his motion to dismiss his indictment for re-entry of a removed alien. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. BACKGROUND Sanchez-Porras is a Mexican citizen who became a U.S. permanent resident in 1985. Thirteen years later, in 1998, he was charged in Iowa state court with two drug * After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. offenses: “Count I . . . knowingly possess[ing] a controlled substance, to wit: Mari[j]uana, a Schedule I Controlled Substance with the intent to deliver”; and “Count II . . . knowingly possess[ing] a controlled substance, to wit: Marijuana, a Schedule I Controlled Substance with the intent to deliver, without affixing the appropriate tax stamp, said substance weighing more than 42.5 grams.” Aplee. Supp. App. at 18. The information indicated that Count Two arose under “453B.1(3)(b), 453B.12, [of the] 1997 Code of Iowa.” Id. at 19. Sanchez-Porras pled guilty to Count Two. The court dismissed Count One and placed him on probation. In 1999, the former Immigration and Naturalization Service (INS) served Sanchez-Porras with a notice to appear (NTA), alleging that he was removable for having an aggravated felony conviction, which it identified as “Possession of a Controlled Substance with the Intent to Deliver, to wit: Marijuana, in violation of Code of Iowa, Sections 453.1(3)(b) [sic] and 453B.12, 1997.” Id. at 27. Sanchez-Porras appeared before an Immigration Judge (IJ) for a removal hearing. Through attorney Joseph Rey, Sanchez-Porras admitted the NTA’s allegations and conceded removability. The IJ ordered Sanchez-Porras removed to Mexico, stating that he had been convicted of an aggravated felony and was ineligible for any relief. Rey waived Sanchez-Porras’s right to appeal, and the INS immediately removed him to Mexico. After a few months, however, he returned to the U.S. Almost twenty years later, in February 2019, Sanchez-Porras was arrested in New Mexico and charged with illegal re-entry, a violation of 8 U.S.C. § 1326(a). He moved to dismiss the indictment by collaterally attacking his removal order under § 1326(d). That 2 provision requires an alien to show, among other things, that the removal order’s entry “was fundamentally unfair.” 8 ...
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