United States v. Francisco Martinez

Appellant Francisco Salgado Martinez (Martinez) challenges the district court’s denial of his motion to dismiss an indictment alleging that he was found in the United States subsequent to an order of removal in violation of 8 U.S.C. § 1326 . Martinez asserts that the underlying removal order was invalid because his conviction for third-degree child molestation in violation of Wash. Rev.Code § 9A.44.089 (2001) was not an aggravated felony. Because recent developments in the law support Martinez’s claim, we reverse the district court’s denial of Martinez’s motion to dismiss the indictment.

I. BACKGROUND

In 2001, Martinez pled guilty to- third-degree child molestation in violation of Wash. Rev.Code § 9A.44.089. Martinez, a lawful permanent resident, was subsequently served with a notice to appear because his conviction was an aggravated felony “relating to ... the sexual abuse of a minor.” 8 U.S.C. § 1101 (a)(43)(A). The Immigration Judge ordered Martinez’s removal from the United States based on his admission to the charges in the notice to appear.

In 2011, Martinez was indicted for being found in the United States subsequent to his removal in violation of 8 U.S.C. §…