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United States v. Montoya-Echeverria

United States District Court, Eighth Circuit

December 30, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSE MONTOYA-ECHEVERRIA, Defendant.

ORDER

LEONARD T. STRAND, Magistrate Judge.

INTRODUCTION

Defendant has filed a motion (Doc. No. 32) to strike certain portions of the indictment in this case as "surplusage." Plaintiff (the Government) has filed a response (Doc. No. 33). I conducted a hearing on December 30, 2013. Assistant United States Attorney Kevin Fletcher appeared for the Government. Defendant appeared in person and with his attorney, Rees Conrad Douglas. During the hearing, I granted the motion orally before reconvening and completing defendant's change-of-plea hearing. While I explained my reasons for granting the motion on the record, I write separately to provide additional analysis and to memorialize the changes to the indictment.

RELEVANT BACKGROUND

Defendant is charged by indictment. The caption of the indictment states that he is charged with the offense of "Aggravated Felon Found After Illegal Reentry." The caption references "8 U.S.C. ยง 1326(a) and (b)(2)." Doc. No. 2. The body of the indictment states:

Count 1

Aggravated Felon Found After Illegal Reentry

On or about July 17, 2013, in the Northern District of Iowa, defendant, JOSE MONTOYA-ECHEVERRIA, an alien citizen of El Salvador, was found knowingly and unlawfully in the United States after having been previously removed from the United States to El Salvador on or about December 5, 2008. Defendant did not obtain the express consent of the Attorney General of the United States or his successor, the Secretary of the Department of Homeland Security (Title 6, United States Code, Section 202(3) and (4) and Section 557), to reapply for admission into the United States prior to re-entering the United States after December 5, 2008, on an unknown date at an unknown location.
Defendant's removal was subsequent to a conviction for an aggravated felony offense, to wit:
On or about July 29, 2008, JOSE MONTOYA-ECHEVERRIA was convicted of identity theft, in the Iowa District Court for Woodbury County.
This was in violation of Title 8, United States Code, Sections 1326(a) and (b)(2).

Id. At 1-2.

Defendant plead not guilty to the charged offense. Later, through counsel, he advised the court of his intent to change his plea to guilty with no plea agreement. On December 4, 2013, I entered an order (Doc. No. 24) scheduling defendant's change-of-plea hearing for December 20, 2013.

On December 17, 2013, the Government filed the Rule 11 letter required by LCrR 11(b). See Doc. No. 28 (sealed). After listing the elements of the charged offense, the Rule 11 letter states that the Government must establish, "as a sentencing factor, " that defendant was previously convicted of at least one aggravated felony. Id. The ...


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