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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

Jose Sergio Calderon-Andrade,

Defendant. __________________________________

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NO. CR 15-01731-TUC-JGZ(CRP)

REPORT AND RECOMMENDATION

ON DEFENDANT'S MOTION TO

DISMISS INDICTMENT

On August 31, 2015, Defendant Jose Sergio Calderon-Andrade was arrested for illegal

re-entry into the United States. He was indicted [Doc. 7] on September 30, 2015. On

February 10, 2016, Defendant filed a Motion to Dismiss Indictment [Doc. 18]. The

Government filed its Response [Doc. 26] on March 25, 2016. A Reply [Doc. 30] was filed

by Defendant on April 24, 2016, and on April 26, 2016, the Government filed a Supplement

to its Response [Doc. 32].

The matter came on for Evidentiary Hearing before the Court on April 26, 2016. The

Defendant called as a witness Hiedy Palomino. The Government called as a witness Border

Patrol Agent Elena Galvan.

The Court, having considered the briefing, arguments, and evidence presented,

recommends that the District Judge, after her independent review and consideration, enter

an order DENYING Defendant's Motion to Dismiss Indictment [Doc. 18].

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FACTS

Defendant Sergio Calderon-Andrade received a (SAW) Temporary Resident Permit

on December 8, 1998. Less than two years later, on December 1, 1990, he was granted

Lawful Permanent Resident (LPR) status.

On April 13, 1998, Defendant illegally entered the United States near Nogales,

Arizona, and was arrested driving a U-Haul vehicle containing 19 undocumented aliens. The

U.S. Attorney’s Office declined prosecution for Transportation of Illegal Aliens, but, based

on the Defendant’s post-arrest statements, did authorize prosecution for Illegal Entry. At the

Defendant’s Initial Appearance Hearing, he was appointed counsel. From the time of his

arrest, throughout his entire federal prosecution, he was known as Antonio AndradeCalderon. The record is absent of any indication that he advised his attorney or the Court

about his true name or LPR status. Following the Defendant’s plea of guilty to Illegal Entry

he was sentenced to time served and released to Immigration for further proceedings.

Once the Defendant was in Immigration’s custody pending a Removal Hearing, he:

1) Declined seeking a continuance to speak to counsel;

2) Withheld from the Court his true name and his status as an LPR;

3) Went forward by admitting an Illegal Entry and requested a voluntary return

(VR) in lieu of removal.

The trial Judge denied Defendant a VR because of his role as the driver of a vehicle

with 19 undocumented aliens.

The Defendant contends that, because of his LPR status, he would have been eligible

for an Order of Cancellation of Deportation. This is arguably true, but the only person in the

Courtroom who knew of his status was the Defendant. In 1998, the federal fingerprint

analysis system was not what it is today. The Government did not then know that Antonio

Andrade-Calderon was Jose Sergio Calderon-Andrade, an LPR. Consequently, neither the

Court or Government’s counsel could explore those issues with the Defendant. The Court

opines that the Immigration Judge who would not give the Defendant a VR would not have

given the Defendant as Mr. Calderon a cancellation of deportation.

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The Defendant was removed from the United States on May 4, 1998. On June 26,

1998, the Defendant, under his true name, was arrested and prosecuted for transporting 7

illegal aliens into the United States. At this point, Border Patrol was suspicious Defendant

had more than one Immigration file, ordered a search of its records on July 27, 1998, and the

file of Antonio Andrade-Calderon was merged into that of Jose Sergio Calderon-Andrade.

On January 20, 1999, Defendant was sentenced to 11 months in prison. After service

of his sentence, his initial order of removal was reinstated on September 9, 1999. Defendant

was given an opportunity to make a statement contesting the removability determination, Ex.

16, but he declined the opportunity. This Court assumes the Defendant concluded:

1) two prior Illegal Entries (one conviction)

2) two Transportation of Illegal Alien arrests (one prosecution to conviction)

would trump his previous status and the existence of U.S. citizen children. This Court does

not really know what he thought or what the Immigration Judge would have done, but, from

the facts before the Court, the Defendant would have been removed for playing games with

the Immigration system, i.e.:

1) using an alias; by

2) hiding his identity,

3) failing to carry his “green card”, and

4) being a repeat criminal offender.

If the Defendant was denied any due process, it was because of his failure to inform the

Court of his status in this country.

CONCLUSION

It is the recommendation of this Court that the District Judge, after her independent

review and consideration, enter an Order DENYING Defendant's Motion to Dismiss

Indictment [Doc. 18].

Pursuant to 28 U.S.C. §636(b)(1)(B), the parties have fourteen (14) days from the date

of this Report and Recommendation to file written objections to these findings and

recommendations with the District Court. Any objections and Responses to objections filed

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should be filed as CR 15-01731-TUC-JGZ. No Replies shall be filed unless leave is granted

from the District Court.

DATED this 28th day of April, 2016.

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