Argued: May 9, 2019
from the United States District Court for the Eastern
District of Virginia, at Richmond. M. Hannah Lauck, District
Stephen Camden, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Richmond, Virginia, for Appellant.
Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee.
C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.
Zachary Terwilliger, United States Attorney, S. David
Schiller, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
NIEMEYER, KEENAN, and QUATTLEBAUM, Circuit Judges.
NIEMEYER, Circuit Judge
Villarreal Silva, a citizen of Mexico, was, during a traffic
arrest on August 6, 2017, found in the United States after
having been removed following conviction for a felony. A
grand jury indicted him for violating 8 U.S.C. §
1326(a), (b)(1), which punishes "any alien who has been
. . . removed . . . and thereafter . . . is at any time found
in the United States" and which enhances the penalty
when the "removal was subsequent to a conviction for . .
. a felony."
filed a motion to dismiss the indictment, challenging the
validity of his underlying removal, which was an element of
the § 1326 offense. He contended that during the
removal, which was an expedited removal conducted under 8
U.S.C. § 1225(b)(1)(A)(i), he was denied procedural due
process and therefore that the removal "was
fundamentally unfair." 8 U.S.C. § 1326(d)(3). The
district court observed that neither party had addressed the
"relevance of 8 U.S.C. § 1225(b)(1)(D)" -
which provides that in a § 1326 prosecution, the court
"shall not have jurisdiction to hear any claim attacking
the validity of an order of removal" issued under the
expedited removal provision - and requested briefing on the
constitutionality of that section insofar as it prohibited
any challenge to the validity of the removal element of
Villarreal's § 1326 prosecution. Following briefing,
the court held that § 1225(b)(1)(D) was unconstitutional
and that Villarreal was entitled to a due process review of
his prior expedited removal order. On conducting that review,
however, the court held that Villarreal failed to establish
that the removal was fundamentally unfair and accordingly
denied his motion to dismiss.
Reserving review of the district court's denial of his
motion to dismiss, Villarreal pleaded guilty, and the
district court sentenced him to 21 months' ...