United States v. Faustino Gomez

Faustino Gomez appeals the district court’s denial of his motion to dismiss the indictment charging him with illegal reentry under 8 U.S.C. § 1326 . Gomez argues that his underlying 2006 removal was invalid because the stipulated removal proceeding violated his right to due process and denied him an opportunity to seek voluntary departure. We hold that the removal was invalid for two independent reasons: (1) the stipulated removal proceeding violated Gomez’s right to due process because he was denied his right to appeal the removal order, and (2) the Immigration Judge (“IJ”) violated 8 C.F.R. § 1003.25 (b) by finding Gomez’s waiver of rights “voluntary, knowing, and intelligent” on the basis of an insufficient record. Nonetheless, we affirm Gomez’s § 1326 conviction because the violations were harmless given that Gomez was ineligible for voluntary departure at the time of the 2006 proceeding.

Gomez also challenges the district court’s imposition of a sixteen-level sentencing enhancement. He argues that his 2004 conviction for sexual conduct with a minor under Arizona Revised Statute section 13-1405 does not constitute a “crime of violence” as defined by United States…