United States of America v. Lepido Ramirez Rodriguez

New York City, New York, criminal defense lawyer represented the Defendant charged with illegal reentry by a removed alien.

In 1999, Defendant-Appellant Lepido Ramirez Rodriguez, who was a legal
permanent resident of the United States, was convicted of criminal sale of a
controlled substance in the second degree, in violation of New York law. At a
hearing in February 2000, an Immigration Judge (“IJ”) determined that Ramirez
Rodriguez’s conviction was an aggravated felony and a controlled substance
offense that rendered him removable and ordered him deported. Following his
deportation, Ramirez Rodriguez twice re-entered the United States without
authorization. Both times, he was convicted of illegal reentry and the 2000
removal order was reinstated.

But the 2000 removal order was invalid. As this Court made clear in United
States v. Minter, 80 F.4th 406 (2d Cir. 2023), criminal sale of a controlled substance
in the second degree under New York law is not a removable offense.
Accordingly, when Ramirez Rodriguez was charged with illegal reentry for a third
time in the case before us, he moved to dismiss the indictment pursuant to 8 U.S.C.
§ 1326(d), contending that the 2000 removal order was fundamentally unfair and
could not serve as a valid predicate for his removal.
The district court, relying on the two subsequent illegal reentry convictions,
concluded that Ramirez Rodriguez was not prejudiced by the error and denied the
motion. He then pleaded guilty but preserved his right to appeal the denial of his
motion to dismiss. The district court entered a final judgment from which Ramirez
Rodriguez.

Vacated and remanded. 24-2059 dismissed.