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United States v. Baptist

United States Court of Appeals, Seventh Circuit

July 17, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
MANSA N. BAPTIST, Defendant-Appellant

Argued June 6, 2014

Page 691

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 CR 448 -- James B. Zagel, Judge.

For United States of America, Plaintiff - Appellee: Mirta Woodall, Attorney, Office of The United States Attorney, Chicago, IL.

For Mansa N. Baptist, Defendant - Appellant: Rosa A. Eliades, Attorney, Eliades Law, Pllc, Chicago, IL.

Before BAUER, MANION, and SYKES, Circuit Judges.

OPINION

Page 692

Bauer, Circuit Judge.

Mansa N. Baptist (" Baptist" ) was first removed[1] from the United States to Belize in 1998 after he signed a stipulated removal order. Afterwards, he illegally reentered the United States several times; each time he was discovered, he was again removed to Belize. In 2005, Baptist illegally entered the United States once more and avoided detection until he was arrested in 2010. Afterwards, he was charged with being illegally present in the United States after having been previously removed, in violation of 8 U.S.C. § 1326(a). Baptist filed a motion to dismiss the indictment. In his motion, he collaterally attacked his 1998 removal under 8 U.S.C. § 1326(d), contending that the removal violated his due process rights. The district court denied Baptist's motion, and he appealed. We affirm the district court's decision.

I. BACKGROUND

Baptist is a native of Belize who entered the United States as a lawful permanent resident on January 31, 1988. On September 15, 1992, Baptist pleaded guilty to possession of a controlled substance and was sentenced to probation. On February 6, 1995, Baptist was convicted of possession of a controlled substance after a bench trial and was sentenced to probation a second time.[2] On September 23, 1996, Baptist was again convicted of possession of a controlled substance after a bench trial; this time, he was sentenced to five years' imprisonment. At the time, this offense was considered an aggravated felony. INA § 101(a)(43)(B).

After being released on parole, Baptist received a Notice to Appear (" NTA" ) on October 14, 1998, stating that he had been placed in removal proceedings due to his earlier controlled substance conviction.

Page 693

The NTA asserted that Baptist had been convicted of an offense constituting an aggravated felony drug trafficking offense as well as a controlled substance offense, making him removable under 8 U.S.C. § 1227(a)(2)(A)(iii) (any alien who is convicted of an aggravated felony at any time is removable) and 8 U.S.C. § 1227(a)(2)(B)(i) (any alien who has been convicted of a violation of a law relating to a controlled substance, other than a single offense involving possession of marijuana for one's own use, is removable).

On October 22, 1998, Baptist was given a form titled, " Respondent's Stipulated Request for Order Waiver of Hearing Pursuant to 8 CFR 3.25(b)." [3] The stipulated removal order was written in English, Baptist's native language, as well as Spanish. The document explained Baptist's rights as well as the consequences of signing the form. Relevant portions of the removal order state:

2. I have received a copy of the LIST OF FREE LEGAL SERVICE PROVIDERS. I am aware that, pursuant to 8 CFR 240.3, I may be represented by an attorney ... . I do not wish to be represented by an attorney ... I elect to represent myself in these proceedings.
3. I understand my right to a personal hearing before an immigration judge ... . I hereby waive th[is] right[], and request that my removal proceeding[] be conducted solely by way of written record without a hearing.
5. I do not wish to apply for relief from removal ... . I am not seeking the relief of ... cancellation of removal, ... or any other possible relief or other benefits under the Act.
8. I understand the consequences ... are that I will be removed from the United States. I make this request ...

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