ORDER DENYING DEFENDANT RICARDO SERVANDO FRUTOS-LOPEZ’S MOTION TO DISMISS INDICTMENT

Pending before this Court is Defendant Ricardo Servando Frutos-Lopez’s (“Defendant”) Motion to Dismiss Indictment (“Motion”), filed on September 2, 2008. The Government filed an Opposition on September 15, 2008. Defendant filed a Reply on Friday, September 19, 2008. The Motion came on for hearing on Monday, September 22, 2008. However, because the Court had not received the Reply before the hearing, the Court heard a brief oral argument from Defendant and adjourned the hearing in order to consider the Reply. After consideration of the materials submitted by the parties, argument of counsel and the case file, Defendant’s Motion is DENIED for the reasons indicated below.

I. FACTUAL AND PROCEDURAL HISTORY

The facts material to this Motion are undisputed. In 1999, Defendant Ricardo Servando Frutos-Lopez, an alien, was convicted of second degree robbery, an “aggravated felony” under 8 U.S.C. § 1101 (a)(43)(F), and sentenced to a three-year term of imprisonment. Subsequently, Defendant was placed in removal proceedings by the Immigration and Naturalization Service. At Defendant’s removal hearing, the immigration judge (“IJ”) advised Defendant that because he had been convicted of an aggravated felony, he was not eligible for relief from removal. After the IJ explained to Defendant the basis for his ruling, invited Defendant to respond, and apprised Defendant of his right to appeal, Defendant waived his right to appeal and was removed from the United States pursuant to the removal order, for the first time, on March 28, 2001 (the “underlying removal”).

At some point thereafter, Defendant returned illegally to the United States, and, in late September 2005, was found in the District of Nevada. The Government filed an indictment charging Defendant with a violation of 8 U.S.C. § 1326 , unlawful entry of deported alien. See United State v. Ricardo Servando Frutos-Lopez, District of Nevada Case No. CR 05-405-JCM-GWF (filed October 26, 2005) (“the Nevada criminal case”). Defendant moved to dismiss the indictment on the ground that his deportation on March 28, 2001, was unlawful. Defendant argued that the IJ erred in finding that his conviction for second degree robbery was an “aggravated felony” and determining that Defendant was not eligible for two forms of relief from removal that are available to those who are not aggravated felons. Defendant argued that the IJ’s error caused the IJ to incorrectly advise Defendant of his rights, and that Defendant’s waiver of his appeal rights was therefore invalid.

Magistrate Judge George Foley, Jr., agreed with Defendant and ruled in his Findings & Recommendations that Defendant’s robbery conviction did not render him an “aggravated felon” for purposes of the removal statute because California law allowed for a defendant to be convicted of the substantive offense under an “aiding and abetting” theory. {See Def.’s Mot Ex. B, Findings & Recommendations.) In an Order issued September 19, 2006, Nevada District Court Judge James C. Mahan accepted the recommendation. {See Def.’s Mot. Ex. C, Order.) Accordingly, the Nevada Court concluded that a conviction for aiding and abetting a robbery did not fall within the general offense of an aggravated felony, that the IJ erroneously failed to advise Defendant that he was eligible for certain forms of relief from deportation, and therefore ruled that Defendant’s waiver of his appeal rights was not “considered and intelligent.” (Def.’s Mot. Ex. B 11:10- 19.) Accordingly, the Nevada Court dismissed the indictment charging Defendant with violating 8 U.S.C. § 1326 .

Although Defendant’s section 1326 indictment was dismissed, on September 29, 2006, Defendant was removed from the United States for the second time. Thereafter, Defendant was once again found in the United States. Based on the underlying removal order and the new crime committed by Defendant’s unlawful re-entry into the United States, the Government charged Defendant with a new violation of section 1326, which is the subject of the instant Motion.

Defendant now argues that by obtaining the dismissal in the Nevada criminal case, he successfully collaterally attacked the underlying removal order, thereby achieving the invalidation of that removal order. As such, Defendant argues, the current indictment — which is based upon that underlying removal order — is fatally flawed and must be dismissed.

In opposition, the Government argues, first, that the dismissal in the Nevada criminal case did not invalidate the underlying removal order; rather, it simply dismissed the criminal proceedings then before the Nevada District Court. Second, the Government argues that a Supreme Court opinion issued in 2007, Gonzales v. Duenas-Alvarez, 549 U.S. 183 , 127 S.Ct. 815 , 166 L.Ed.2d 683 (2007), overturned the Ninth Circuit case upon which the Nevada Court relied in its order dismissing the indictment. As such, the Government argues, the underlying removal order is a sound basis for the current section 1326 indictment.

II. LEGAL STANDARD

Under Federal Rule of Criminal Procedure 12(b), “[a]ny defense, objection or request which is capable of determination without the trial of the general issue may be raised before trial by a motion.” Fed. R.Crim. Pro. 12(b). A motion to dismiss is generally “capable of determination” before trial “if it involves questions of law rather than fact.” United States v. Nukida, 8 F.3d 665, 669 (9th Cir.1993); United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir.1986). In considering a pretrial motion to dismiss all or part of an indictment, the court “must presume the truth of the allegations in the charging instruments.” United States v. Jensen, 93 F.3d 667, 669 (9th Cir.1996). Further, the court should not generally consider “evidence not appearing on the face of the indictment.” Id.

However, a court “may make preliminary findings of fact necessary to decide the legal questions presented by the motion,” so long as its preliminary findings do not “invade the province of the ultimate finder of fact.” Nukida, 8 F.3d at 669 ; see also Jensen, 93 F.3d at 670 (Fletcher, J., concurring) (“There is no prohibition against the consideration of extrinsic evidence for purposes of a Rule 12(b) motion to dismiss.”); United States v. Covington, 395 U.S. 57, 60 , 89 S.Ct. 1559 , 23 L.Ed.2d 94 (1969) (Rule 12(b) “permits factual hearings prior to trial if necessary to resolve issues of fact peculiar to the motion”).

III. DISCUSSION

Defendant is charged with being “found” in the United States in violation of 8 U.S.C. § 1326 . The elements of that crime are: (1) the defendant is an alien; (2) the defendant was deported/removed from the United States; and (3) the defendant voluntarily reentered and remained in the United Stats without the consent of the Attorney General. United States v. Godinez-Rabadan, 289 F.3d 630, 632 (9th Cir.2002). Defendant contends that, as a matter of law, the Government cannot prove the second element of the crime because the removal upon which the indict ment is based was invalidated by Judge Mahan’s September 2006 order affirming Judge Foley’s Findings & Recommendations and dismissing the indictment in the Nevada criminal proceedings. {See Mot. 11:1-2, referring to Judge Mahan’s order as “invalidating Mr. Frutos-Lopez’s underlying removal order.”) Defendant contends that section 1326(d) expressly provides for such a collateral attack on the underlying deportation order in the context of a section 1326 criminal proceeding. The Government argues that Defendant’s interpretation of section 1326(d) is incorrect.

A. The District of Nevada Criminal Proceedings Did Not Invalidate the Underlying Removal.

Section 1326(d) states, in relevant part: In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a)(1) of this section or subsection (b) of this section unless the alien demonstrates that—

Assuming Defendant’s Nevada motion satisfied all elements of section 1326(d) , the question is whether, through such a challenge, Defendant achieved the vacatur or invalidation of the underlying removal order.

As both parties acknowledge, Congress enacted section 1326(d) in 1996 as a codification of the Supreme Court’s decision in United States v. Mendoza-Lopez, 481 U.S. 828 , 107 S.Ct. 2148 , 95 L.Ed.2d 772 (1987). In Mendoza-Lopez , the Court determined “whether an alien who is prosecuted under 8 U.S.C. § 1326 for illegal entry following deportation may assert in that criminal proceeding the invalidity of the deportation order.” Mendoza-Lopez, 481 U.S. at 830 , 107 S.Ct. 2148 . The Court addressed this question as one of both statutory interpretation and constitutional interpretation.

In its statutory analysis, the Court resolved a Circuit split over whether section 1326 itself provides for such a challenge to the use of the deportation in a criminal prosecution under section 1326. After reviewing the language of section 1326, its legislative history and related legislation, the Court held that section 1326 does not contemplate such a collateral challenge to the legality of the underlying deportation proceedings:

The Court thus concluded that the text and background of section 1326 indicated no congressional intent to sanction challenges to the validity of deportation orders in proceedings under section 1326.

The Court then proceeded to the constitutional question of whether due process requires that a defendant be permitted to challenge the use of a deportation proceeding as an element of a criminal offense. The Court held that the due process clause does require that a defendant be permitted to bring such a challenge, determining that where the deportation proceeding effectively eliminates the right of the alien to obtain judicial review, the defendant could collaterally attack the underlying deportation proceeding. Mendozar-Lopez, 481 U.S. at 837-839 , 107 S.Ct. 2148 . It is this portion of Mendozar-Lopez — the Court’s constitutional holding — that was codified in the 1996 amendment, adding subsection 1326(d) to section 1326.

The Mendozar-Lopez Court found only that because there were due process violations in the underlying removal order “[t]he government may not, therefore, rely on those orders as reliable proof of an element of a criminal offense.” Id. 481 U.S. at 842 , 107 S.Ct. 2148 . The Court did not determine that such a challenge would effect the vacatur of the removal order; indeed, the Court did not squarely answer that question. However, in footnote 17, the Court explained the limits of its holding: “We note parenthetically that permitting collateral challenge^] to the validity of deportation orders in proceedings under § 1326 does not create an opportunity for aliens to delay deportation, since the collateral challenge we recognize today is available only in criminal proceedings after reentry.” Id. 481 U.S. at 849 fn. 17, 107 S.Ct. 2148 . This qualification suggests that the underlying removal or deportation order remains pending despite a successful collateral attack upon it in a section 1326 prosecution. Furthermore, the whole opinion describes the “collateral attack” as an attack on the use of the underlying order as proof of an element of a subsequent crime. In other words, MendozarLopez determined that a collateral attack on the underlying removal order was a defense to the new section 1326 charge. Section 1326(d) codifies that constitutional defense to a new charge; it does not establish a means to achieve the reversal or vacatur of the underlying removal order.

Other cases adjudicating challenges to section 1326 charges on the ground that the underlying removal order was unlawful provide circumstantial support to this Court’s conclusion: in each instance, the court granted only the limited relief of the dismissal of the indictment or the reversal of the conviction, not the vacatur of the underlying removal order. See, e.g., United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir.2004) (finding that defendant met the three elements of section 1326(d), affirming that defendant’s underlying deportation order deprived him of due process because the IJ did not inform him that he had the right to appeal his removal order, and reversing his convictions under section 1326 “because his removal order cannot stand as a basis for his convictions.”); see also United States v. Lopez-Hernandez, 2007 WL 608111 , 6, 2007 U.S. Dist. 16251, 16 (N.D.Cal.2007) (where removal proceeding violated due process “we may invalidate the criminal charges stemming therefrom”). By contrast, Defendant has presented no coherent theory or authority for his position that section 1326(d) does anything more than codify a constitutional defense; his proposition that the Nevada District Court’s dismissal of his section 1326 indictment effected the vacatur of the underlying removal order remains unsupported.

Furthermore, Defendant’s motion to dismiss the Nevada indictment achieved only what it sought: the dismissal of the indictment. There is no evidence that Defendant moved for the vacatur of the removal order; nor does it seem that he could achieve that result. Indeed, that the Nevada order only dismissed the indictment and did not vacate, invalidate, overturn or stay the underlying removal order is borne out by the language of the Magistrate Judge’s Findings & Recommendations, recommending only that “Defendant’s Motion to Dismiss Indictment Based on Prior Unlawful Deportation [] be GRANTED.” (Def.’s Ex. B 11:18-19.)

Accordingly, the Nevada criminal proceedings only dismissed the then-pending prosecution under section 1326, and left the underlying removal order undisturbed.

B. The Effect of Gonzales v. DuenasAlvarez

Shortly following Defendant’s second deportation (after the Nevada criminal proceedings), the Supreme Court, resolving a circuit split, overturned the Ninth Circuit precedent relied upon by the Nevada Court and held that a conviction secured under an “aiding and abetting” theory itself falls within the generic definition of the underlying crime. Gonzales v. Duenas-Alvarez, 549 U.S. 183 , 127 S.Ct. 815 , 166 L.Ed.2d 683 (2007). Specifically, in Duenas-Alvarez , the Defendant was convicted of “aiding and abetting” a theft; the Supreme Court held that for purposes of the Immigration and Nationality Act and the removal provisions therein, one who “aids and abets” a theft commits a crime that falls within the scope of the generic definition of “theft”:

Duenas-Alvarez, 549 U.S. at 185 , 127 S.Ct. 815 . Defendant concedes this reading of Duenas-Alvarez. (See Mot. 10:12-18.)

Under the rule set forth in DuenasAlvarez, Defendant’s 1999 conviction for second degree robbery is a conviction for an aggravated felony, regardless of whether he was convicted as a principal or under an aiding and abetting theory. As such, during Defendant’s underlying removal proceedings, the IJ correctly found that Defendant had been convicted of an aggra vated felony and that Defendant was not eligible for any relief from removal. Accordingly, the IJ correctly advised Defendant of his rights before Defendant waived his right to appeal.

Defendant argues that Duenas-Alvarez cannot be applied to this case because Judge Mahan’s order invalidated the underlying removal order. However, as discussed above, although Judge Mahan’s order barred the underlying removal from being used to prove an element of the then-pending section 1326 charge, his order did not vacate the removal order itself. Defendant’s argument that applying Duenas-Alvarez to this case would effectively revive a vacated removal order, or otherwise “ignore” Judge Mahan’s order, is therefore unavailing. Indeed, under “the principle that [while] statutes operate only prospectively, judicial decisions operate retrospectively,” Rivers v. Roadway Exp., Inc., 511 U.S. 298, 311-312 , 114 S.Ct. 1510 , 128 L.Ed.2d 274 (1994) (citation omitted), it is clear that Duenas-Alvarez , an intervening Supreme Court decision, governs this Court’s resolution of the Motion. Accordingly, the Court finds that the underlying removal proceedings provide a sound basis for the second element of the current indictment under section 1326.

Because the underlying removal order was never vacated or otherwise invalidated by Judge Mahan’s order, and because Duenas-Alvarez demonstrates that the IJ did not commit error during the removal proceedings, Defendant’s challenge to his indictment fails.

IV. CONCLUSION

For the foregoing reasons, the Court DENIES Defendant’s Motion to Dismiss the Indictment.

. For the record, the Court notes that although the Nevada District Court’s Order discusses several cases that apply section 1326(d), the Order itself does not expressly apply that section. Rather, the Order is focused primarily upon determining whether Defendant’s prior conviction was an "aggravated felony." Thus, while it is clear from the facts and analysis therein that the Court found, in essence, that Defendant demonstrated elements (2) and (3) of 1326(d), it is not clear that the Court considered whether Defendant satisfied the first requirement, exhaustion of administrative remedies. Furthermore, the absence of an express discussion of section 1326(d) renders it difficult for this Court to conclude that the Nevada Court dismissed the indictment pursuant to section 1326(d).