United States v. Emilio Estrada

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0275p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, ┐ Plaintiff-Appellee, │ │ > No. 17-5081 v. │ │ │ EMILIO ESTRADA, │ Defendant-Appellant. │ ┘ Appeal from the United States District Court for the Eastern District of Tennessee at Winchester. No. 4:13-cr-00013-1—Harry S. Mattice, Jr., District Judge. Decided and Filed: December 4, 2017 Before: CLAY, GIBBONS, and COOK, Circuit Judges. _________________ COUNSEL ON BRIEF: Gianna Maio, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga, Tennessee, for Appellant. Jay Woods, UNITED STATES ATTORNEY’S OFFICE, Chattanooga, Tennessee, for Appellee. _________________ OPINION _________________ COOK, Circuit Judge. Emilio Estrada, a Mexican citizen, entered a conditional guilty plea to one count of illegal reentry following removal. The district court denied his motions to dismiss the indictment, and Estrada appeals. His challenge hinges on collaterally attacking his original removal proceedings. Because Estrada falls short of the statutory requirements to lodge this attack on the underlying removal order, we AFFIRM the district court’s judgment. No. 17-5081 United States v. Estrada Page 2 I. In November 2007, undercover officers attempting a controlled purchase of methamphetamine arrested Emilio Estrada upon finding meth in his pocket and a rifle and ammunition in his car. He eventually pleaded guilty to possession of a firearm by an unlawful user of a controlled substance, see 18 U.S.C. § 922(g)(3), and the district court sentenced him to 12 months’ imprisonment plus two years of supervised release. Owing to this conviction for an aggravated felony, see 8 U.S.C. § 1101(a)(43)(E)(ii), Estrada—a green-card holder but not a U.S. citizen—was ordered to appear in immigration court for removal1 proceedings, see id. § 1227(a)(2)(A)(iii). At his first appearance, Estrada confirmed he understood his rights as read by the Immigration Judge to a group of respondents. He then advised the Immigration Judge that he had retained counsel; Estrada’s counsel (Vincent Anderson), however, was neither present nor had he entered an appearance, and the judge continued the case. Estrada appeared again several weeks later with his newly retained counsel (Luke Abrusley), who admitted the facts alleged in the Notice to Appear and conceded Estrada’s removability. Noting the unavailability of other relief, the Immigration Judge ordered Estrada removed to his home country of Mexico. Estrada waived his right to appeal, and he was deported in March 2009. Six years later, law enforcement discovered Estrada in the United States without permission. A federal grand jury charged him with two counts of illegal reentry following deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2). Estrada moved to dismiss the indictment via a collateral attack on the underlying deportation order, arguing that the Immigration Judge violated his due process rights by failing to advise him of the possibility of discretionary relief from removal under § 212(h) of the Immigration and Nationality Act (INA). Id. § 1182(h). He filed an amended motion to dismiss making similar arguments, but the district court found no due process violation ...

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