United States v. Marcelino Oseguera-Madrigal
2012 U.S. App. LEXIS 23710
| 9th Cir. | 2012Background
- Oseguera-Madrigal, a Mexican citizen, came to the United States in 1970 at age two.
- In 1994, he pled guilty in Washington state to a reduced charge for use of drug paraphernalia.
- Removal proceedings began in 2001; an IJ found him removable and the BIA affirmed; he was removed in February 2009.
- On January 11, 2011, he was indicted for being an alien in the United States after deportation under 8 U.S.C. § 1326.
- He moved to dismiss the indictment by collaterally attacking the underlying removal proceedings; the district court denied, and he pled guilty conditionally preserving an appeal of the denial; he was sentenced to 35 months.
- The conviction and sentence are affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Collateral attack on removal order based on removability. | Oseguera contends the IJ erred in removability finding. | Government argues the record shows removability; no due process violation. | Removability is valid; collateral attack denied. |
| Eligibility for §1182(h) waiver and IJ notice. | Oseguera argues he was entitled to relief notice; due process violation. | No relief available because paraphernalia related to cocaine, not marijuana. | No eligible relief; IJ did not err in failing to inform. |
| Sentence within discretion under Gall and Rita framework. | Sentence of 35 months is unreasonably long. | Dish: court acted within discretion, below Guidelines range. | District court acted within its discretion; sentence affirmed. |
Key Cases Cited
- Luu-Le v. INS, 224 F.3d 911 (9th Cir. 2000) (paraphernalia relating to a controlled substance)
- Bermudez v. Holder, 586 F.3d 1167 (9th Cir. 2009) (paraphernalia statute related to controlled substance)
- Ahumada-Aguilar, 295 F.3d 943 (9th Cir. 2002) (collateral attack on removal; de novo review)
- Lopez-Velasquez (en banc), 629 F.3d 894 (9th Cir. 2010) (due process and relief considerations in collateral attacks)
- García-Martinez, 228 F.3d 956 (9th Cir. 2000) (due process and relief considerations)
- Escobar Barraza v. Mukasey, 519 F.3d 388 (7th Cir. 2008) (waiver considerations for paraphernalia offenses)
- Moran-Enriquez v. INS, 884 F.2d 420 (9th Cir. 1989) (due process; collateral attacks)
- Gall v. United States, 552 U.S. 38 (2007) (abuse-of-discretion standard in sentencing)
- Rita v. United States, 551 U.S. 338 (2007) (effect of Guidelines deviations on review)
- United States v. Ahumada-Aguilar, 295 F.3d 943 (9th Cir. 2002) (collateral attack standards)