Denial of motion to dismiss indictment for illegal reentry is affirmed despite infirmity of underlying removal order

COLLATERAL REVIEW United States v. Rivera-Nevarez, No. 04-3164, ___ F.3d ___ (10th Cir. Aug. 5, 2005)(Kansas). Appeal of district court’s denial of motion to dismiss indictment for illegal reentry after prior removal in violation of 8 U.S.C. § 1326(a) and (b)(1) based on collateral challenge to underlying removal order. HELD: In collateral challenge to removal order serving as basis for indictment and conviction for illegal reentry after prior removal, district court erroneously determined that that Leocal v. Ashcroft, 125 S. Ct. 377 (2004)(holding that DUI is not crime of violence for removal purposes), did not apply retroactively to time of defendant’s removal order. Nonetheless, district court’s error was harmless because defendant did not otherwise meet statutory criteria for bringing collateral challenge to underlying removal proceeding. Read the opinion here.