United States v. Alonso Chavez-Gonzalez

MEMORANDUM

Appellant Alonso Chavez-Gonzalez (“Chavez”) appeals from the denial by the district court of his Motion to Dismiss the Indictment. The Indictment charged Chavez under 8 U.S.C. § 1326 (a) and (b) with being a deported alien, previously removed to Mexico, who was later found in the United States without permission. Chavez argues that the Indictment should have been dismissed because two orders removing him, in 2000 and 2005, were invalid, since they were based on the erroneous conclusion by immigration officials that his prior conviction of possession for sale of a controlled substance under California Health and Safety Code § 11351 was for a substance listed in the federal Controlled Substances Act, and an aggravated felony. Chavez claims the record does not establish that the controlled substance at issue in his prior conviction was cocaine.

Chavez entered a conditional guilty plea to the Indictment, retaining the right to appeal the denial of the Motion to Dismiss. We have jurisdiction pursuant to 28 U.S.C. § 1291 .

We review the denial of a Motion to Dismiss an Indictment de novo “when the motion is based upon an alleged due process defect in the underlying…