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United States v. Silva

United States Court of Appeals, Fourth Circuit

July 25, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
OMAR VILLARREAL SILVA, a/k/a Nolberto Ruiz Trinidad, a/k/a Nolberto Trinidad Ruiz, Defendant-Appellant.

          Argued: May 9, 2019

          Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. M. Hannah Lauck, District Judge. (3:17-cr-00125-MHL-1)

         ARGUED:

          Joseph 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.

         ON BRIEF:

          Geremy C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.

          G. Zachary Terwilliger, United States Attorney, S. David Schiller, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

          Before NIEMEYER, KEENAN, and QUATTLEBAUM, Circuit Judges.

          NIEMEYER, Circuit Judge

         Omar 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."

         Villarreal 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' ...


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