United States v. Gustavo Garcia-Gonzalez

I. INTRODUCTION

A grand jury indicted Gustavo Garcia-Gonzalez on one count of being a previously removed alien illegally found in the United States, in violation of 8 U.S.C. § 1326 (a). Garcia moved the district court to dismiss the indictment, arguing the pri- or removal upon which it was based was fundamentally unfair. See id. § 1326(d). The district court denied the motion; Garcia entered a conditional guilty plea preserving his right to challenge that decision on appeal. See Fed.R.Crim.P. 11(a)(2). Garcia asserts the district court erred in two particulars: (1) in concluding he failed to demonstrate his expedited removal in 2012 was fundamentally unfair; and (2) in refusing to order the government to produce statistics about the numbers of individuals with a background similar to his who were granted a form of discretionary relief available in expedited removal proceedings, i.e., withdrawal of application for admission. See 8 U.S.C. § 1225 (a)(4) (“An alien applying for admission may, in the discretion of the Attorney General ..., be permitted to withdraw the application for admission and depart immediately from the United States.”); 8 C.F.R. § 1235.4 (providing…