Illegal Reentry Conviction Based on Administrative Removal Order Affirmed

United States v. Perez-Paz: Perez-Paz had been removed multiple times to his native Honduras, as well as being convicted of illegal reentry, when he was arrested in Virginia in 2018 following a traffic accident. He was charged with illegal reentry and sought to dismiss the charge, arguing that using an administrative removal order as the basis for a conviction would violation the Fifth and Sixth Amendments. After the motion to dismiss was denied, Perez-Paz pleaded guilty and was sentenced to 42 months in prison, granting the Government’s motion for an upward variance.

On appeal, the Fourth Circuit affirmed Perez-Paz’s conviction, but vacated his sentence and remanded. As to the conviction, the court rejected “the premise of Perez-Paz’s argument” that the illegal reentry statute “incorporates the facts supporting the underlying removal order,” based on Supreme Court law that the statute does not “incorporate, as an element, a ‘lawful’ removal order.” In addition, there was no due process issue because an alien could seek appellate review of a removal order, either through the removal process itself or within the confines of a challenge under the illegal reentry statute. As to Perez-Paz’s sentence, the court agreed that the district court failed to sufficiently address two non-frivolous mitigating arguments he made, one regarding the nature of prior convictions and one regarding sentencing disparities.