United States v. Filemon Arzate-Nunez

Filemon Arzate-Nunez appeals his guilty plea conviction of being an alien in the United States after deportation and conviction of an aggravated felony. 8 U.S.C. § 1326 (b)(2). He argues that the district court erred in denying his motion to dismiss the indictment and in accepting his conditional guilty plea. We affirm.

I. FACTS & PROCEDURAL BACKGROUND

Arzate-Nunez is a citizen of Mexico who has spent significant time in the United States. In 1985, he was convicted in California state court of the sale or transportation of a narcotic, a felony under California Health & Safety Code § 11352. He served less than 90 days in jail. In January 1992, he was again arrested by officers investigating a drug conspiracy. The federal District Court of Washington, Eastern Division dismissed the charges arising out of this incident without prejudice. However, on April 4, 1992, the INS deported Arzate-Nunez based on his immigration status. Before his deportation, the INS sent Arzate-Nunez a warning letter stating that “any deported person who within five years returns without permission is guilty of a felony ... [and] may be punished by imprisonment of not more than two years and/or a fine of…