S. Amanda Marshall, United States Attorney, District of Oregon Ethan D. Knight, Assistant United States Attorney, Portland, OR. Attorneys for Plaintiff
Matthew Schindler, Lake Oswego, OR. Attorney for Defendant.
OPINION AND ORDER
GARR M. KING, District Judge.
Defendant Miguel Avila-Arreola is charged with Illegal Reentry in violation of 8 U.S.C. § 1326(a). Pending before the Court are a Motion to Dismiss  and a Motion for Discovery . For the following reasons, I deny both motions.
Avila-Arreola is facing an illegal reentry charge based on his removal from the United States after his felony convictions in 2010. In that year, Avila-Arreola pled guilty in Washington County Circuit Court to four charges: Assault in the Second Degree (ORS 163.175); Assault in the Third Degree (ORS 163.165); Unlawful Use of a Weapon (ORS 166.220); and Riot (ORS 166.015). According to his plea petition, Avila-Arreola "aided knowingly while another person caused physical injury to Gerardo Santos-Santos with a dangerous weapon." Def.'s Ex. 4, at 6, ECF No. 31. He was sentenced to 36 months' imprisonment on the Assault in the Second Degree charge, and concurrent sentences of 6 months' for the remaining charges. Avila-Arreola was thereafter removed from the United States to Mexico on January 14, 2012 pursuant to a Final Administrative Removal Order.
Avila-Arreola subsequently entered a guilty plea to Criminal Trespass in the First Degree in Washington County on June 24, 2013. About a month later, on July 23, the United States indicted Avila-Arreola with the present charge of Illegal Reentry.
An assistant federal public defender represented Avila-Arreola at his first appearance, arraignment, and detention hearing on July 25. At that time, the Court scheduled a one-day trial for September 24. On August 23, at defense counsel's request, the Court struck the jury trial and scheduled a change of plea hearing on September 24. Four days after the Court entered the order striking the jury trial, retained counsel moved to substitute herself for the assistant public defender and the Court granted the substitution. On September 24, at the hearing scheduled to take Avila-Arreola's guilty plea, substitute counsel informed the Court that Avila-Arreola no longer wished to plead guilty; the Court then scheduled a jury trial to begin on November 19. The Court requested defense counsel file an affidavit or declaration containing a representation that Avila-Arreola waived his speedy trial rights, but the document she subsequently filed on Avila-Arreola's behalf contained an insufficient waiver. The Court then scheduled a hearing on October 23, at which Avila-Arreola's counsel failed to appear. Concerned about the upcoming trial date and the lack of a speedy trial waiver, the Court moved the trial date up to November 4 and scheduled a hearing for October 29. Defense counsel filed the pending motions the morning of the October 29 hearing. At the hearing, Avila-Arreola waived his speedy trial rights and the Court found excludable delay to December 4.
I. Motion to Dismiss
Avila-Arreola contends the indictment must be dismissed for the following reasons: his right to a speedy trial; the unconstitutionality of the charging statute; the defect in the underlying removal order; the failure to advise him of immigration consequences; and the inaccuracy of the indictment.
A. Speedy Trial
Federal Rule of Criminal Procedure 48(b) permits a Court to dismiss an indictment if unnecessary delay occurs in bringing a defendant to trial. The Speedy Trial Act is intended to minimize delays in bringing cases to trial. 18 U.S.C. § 3161. It requires that federal defendants be brought to trial within 70 days of the filing of the indictment or 70 days from their first appearance, whichever date is later. United States v. Lewis , 611 F.3d 1172, 1175 (9th Cir. 2010). The Act recognizes it may be impossible to begin a trial within the time limits established by the Act and allows the Court to find any number of days excludable from the Act. Any delay resulting from an excludable event stops the running of the speedy trial clock. Upon motion by the defendant, the Act requires dismissal of the charges when a case does not proceed to trial within the required time limits. The Sixth Amendment similarly requires a speedy trial, and directs the Court to consider four factors in evaluating whether a violation has occurred: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of speedy trial rights; and (4) prejudice as a result of the delay. Doggett v. United States , 505 U.S. 647, 651-52 (1992).
At the time Avila-Arreola filed his motion to dismiss raising this argument, he had not waived his speedy trial rights. However, Avila-Arreola had engaged in plea negotiations pursuant to the fast track program, to the point where his counsel scheduled a plea hearing, and this Court struck his trial date. Pursuant to Ninth Circuit authority, the time devoted by the parties to the fast-track proceedings before September 24-the date the Court first learned Avila-Arreola no longer wished to plead guilty-was properly excludable. United States v. Alvarez-Perez , 629 F.3d 1053, 1058 (9th Cir. 2010) (describing time devoted to fast track as either "delay resulting from consideration by the court of a proposed plea agreement" or a "pretrial motion"). Accordingly, excluding the time the Court understood Avila-Arreola was going to plead guiltyfrom August 23 to September 24-I previously concluded Avila-Arreola should be tried by November 4. On October 29, before the speedy trial clock had run, Avila-Arreola ...