United States v. Mario Mercado-Vega

MEMORANDUM

Mario Mercado-Vega appeals from the district court’s order denying his motion to dismiss the indictment charging him with being an alien who was removed from and subsequently found in the United States in violation of 8 U.S.C. § 1326 . Mercado pleaded guilty as part of a conditional agreement that preserved his ability to appeal the district court’s denial of his motion. He contends that the indictment should have been dismissed because the 1996 removal order that formed the predicate for his § 1326 conviction was invalid.

Mercado first argues that he “does not recall” being present at the 1996 hearing at all. The district court made a factual finding that Mercado was present, based on fingerprint evidence and the fact that Mercado was in custody at the time. Mercado challenges that conclusion on the grounds that he does not remember attending the hearing and that he would not have spoken English as well as the person on the audio recording. Having failed to support the latter assertion with an affidavit and to explain how the fingerprint evidence was in any way unreliable, Mercado cannot establish clear error in the district court’s finding. See United States v.…