United States v. Aragon-Ruiz (551 F. Supp. 2d 904, 2008)

United States District Court for the District of Minnesota 2008-03-14

Citations

Full opinion text

ORDER

DAVID S. DOTY, District Judge.

This matter is before the court upon the parties’ objections to Magistrate Judge Janie S. Mayeron’s January 29, 2008, report and recommendation. In her report, the magistrate judge recommends granting in part and denying in part defendant Ricardo Aragon-Ruiz’s motion to suppress, and denying defendant’s motions to dismiss and for court determination of prior conviction. Following a de novo review of the file and record pursuant to 28 U.S.C. § 636(b)(1)(C), the court adopts in part the report and recommendation of the magistrate judge.

BACKGROUND

At 7:45 a.m. on September 18, 2007, eight to ten Immigration and Customs Enforcement (“ICE”) agents and a Ramsey County Sheriffs deputy (collectively “agents”) attempted to execute a search warrant for Miguel Barrera (“Barrera”)— a known immigration fugitive and member of the “Sureño 13” gang — at a house in Columbia Heights, Minnesota. The agents wore raid gear and carried handguns, and a small number also carried long-arms. Upon arriving, three agents and the deputy moved to a side door while another agent knocked on the front door. The other agents were stationed at each entrance to the house. Emerjido Dueña Carmona (“Carmona”) — a resident of the house — responded at the side door and upon questioning informed the agents that Barrera resided at the house but was not present. The agents then requested and received Carmona’s oral and written consent in Spanish to search the house. During the search, the agents encountered a juvenile male and defendant and placed them in the kitchen with Carmona for security reasons. Nobody was physically restrained at that time.

At the January 8, 2008, hearing, defendant testified that after the agents found him in his bedroom sleeping, they stated that he could leave only after he told them Barrera’s location. However, after informing the agents that Barrera was at work, he was not told that he could leave. Moreover, defendant testified that although the agents did not tell him he was under arrest, he did not think he was free to leave and thought he had to answer the agents’ questions.

Special Agent Jeffrey Benadum (“Bena-dum”) joined the three individuals and approximately three other agents in the kitchen. Benadum sat down at a table between the juvenile and defendant and asked the juvenile his name, where he was from and what the “1” and “3” tattooed on his hand signified. The juvenile responded that he was from Mexico and that the tattoo referred to “Sureño 13.” Benadum then asked defendant for his name, and defendant responded with a name later determined to be false. In response to further questioning by Benadum, defendant indicated that he did not reside in the house and that he did not know his address because he had only lived there for a few days. Defendant also stated that he had a passport and visa at his house.

Around 8:00 a.m., an adult female resident of the house came downstairs and— after telling Benadum that Barrera had left with her husband earlier — asked how long the agents would be in the house because children were arriving shortly for her to babysit. Upon learning this, the agents immediately went to their vehicles with defendant and the juvenile. At this time defendant was not free to leave. (Tr. at 57.) The agents then called for record checks on the names provided by defendant and the juvenile, and after receiving no information on either name, formally arrested them.

The agents placed defendant and the juvenile in a detention van, and Special Agent Patrick Edgar (“Edgar”) read them their Miranda rights in English and Spanish. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Edgar proceeded to ask defendant several biographical questions and inquired whether he was in the United States lawfully. At no time did defendant object to the questioning or request an attorney.

After being questioned in the van, defendant was transported to an ICE office in Bloomington, Minnesota, and fingerprinted upon arrival. With the fingerprints, Edgar determined defendant’s true identity and immigration history. Defendant had previously been removed from the United States pursuant to the expedited procedures set forth in 8 U.S.C. § 1228(b) because of a May 7, 2003, conviction in Minnesota state court of aiding and abetting second degree assault in violation of Minn.Stat. § 609.222, subdiv. 1.

Defendant remained detained at the ICE office and was later questioned by Special Agents Frank Hunter (“Hunter”) and Rocha in the early afternoon. Hunter and Rocha individually advised defendant of his Miranda rights in English and Spanish. Defendant responded to all of the questions in English during the ten to fifteen minute session, and at no time did he object to the questioning or request an attorney.

The government filed a complaint on September 25, 2007, and on October 1, 2007, defendant was indicted on one count of unlawful reentry after removal in violation of 8 U.S.C. § 1326(a) and(b)(2), and 6 U.S.C. §§ 202(3), (4) and 557. On October 2, 2007, defendant moved to suppress all of his statements, admissions and physical evidence — including his fingerprints. Further, on October 24, 2007, defendant moved to dismiss the proceedings because defendant’s earlier removal was legally invalid and moved for a court determination of the status of defendant’s second degree assault conviction. The magistrate judge held a hearing on January 8, 2008, to address the motions.

On January 29, 2008, the magistrate judge issued a report and recommendation granting in part and denying in part defendant’s motion to suppress and denying defendant’s other two motions. With respect to the motion to suppress, the magistrate judge recommends suppressing defendant’s statements made in the house and the van but not at the ICE office. In addition, the magistrate judge recommends suppressing defendant’s fingerprints.

On January 31, 2008, the United States filed a motion to compel defendant’s fingerprint exemplars, which the court granted on February 1, 2008. Defendant moved for reconsideration of the court’s order on February 1, 2008, and on February 4, 2008, moved to suppress defendant’s fingerprint exemplars. The parties’ objections to the magistrate judge’s report and recommendation followed.

DISCUSSION

I. Motions to Dismiss and for Determination of Prior Conviction

The magistrate judge recommends denying defendant’s motion to dismiss. The magistrate judge thoroughly addressed defendant’s motion and concluded that 8 U.S.C. § 1326(d) precludes defendant from challenging the validity of his earlier expedited removal because he did not exhaust his administrative remedies, the proceedings did not deny him of the opportunity for judicial review and the entry of the order was not fundamentally unfair. (R & R at 5-19.) Upon de novo review, the court concurs with the magistrate judge’s analysis and adopts her recommendation with respect to the motion to dismiss. Moreover, the court agrees that because defendant cannot collaterally attack his prior removal, whether his assault conviction is an “aggravated felony” is properly determined if and when he is sentenced. Therefore, the court adopts the magistrate judge’s recommendation to that effect and disregards her alternative conclusion that defendant’s conviction is an “aggravated felony.” (R & R at 19-22.) Accordingly, defendant’s objections are overruled.

II. Motion to Suppress

In her report and recommendation, the magistrate judge found that Carmona validly consented to a search of the house. However, the magistrate judge concluded that defendant was subject to unlawful custodial interrogation while in the kitchen and recommends suppression of those statements. (R & R at 3(M3.) Moreover, the magistrate judge determined that defendant’s arrest was not supported by probable cause and that his statements in the van should be suppressed because they were “not sufficiently attenuated from the illegal arrest.” (Id. at 45.) The magistrate judge also recommends suppressing defendant’s fingerprints because they were “obtained during the unlawful detention and ... were taken in whole or in part for an investigative purpose, and not just to confirm [defendant’s] identity.” (Id. at 52.) As to defendant’s response to Hunter’s questioning, the magistrate judge recommends that the statements not be suppressed because they were voluntary and “sufficiently attenuated from [defendant’s] illegal detention.” (Id. at 45.) The United States objects to the magistrate judge’s recommendations that defendant’s first two statements and his fingerprints be suppressed. Defendant objects to the magistrate judge’s recommendation that

U.S. V. ARAGON-RUIZ Cite as 551 F.Supp.2d 904 (D.Minn. 2008) 911 his statements at the ICE office not be suppressed. A. Miranda Violation [3]An individual subject to custodial interrogation must be given Miranda warnings, otherwise the statements made during the interrogation are inadmissible at trial. See United States v. LeBrun, 363 F.3d 715, 720 (8th Cir.2004) (citing Dickerson v. United States, 530 U.S. 428, 435,120 S.Ct. 2326, 147 L.Ed.2d 405 (2000)). The magistrate judge concluded that Benadum interrogated defendant while he was in custody. The government argues that defendant was not in custody. [4-8] While conducting a valid search, law enforcement officials may temporarily detain individuals found on the premises. See Michigan v. Summers, 452 U.S. 692, 704-05, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) (detention during execution of search warrant); United States v. Heman-dez-Hemandez, 327 F.3d 703, 706 (8th Cir.2003) (detention during consensual search); see also United States v. Wallace, 323 F.3d 1109, 1111 (8th Cir.2003). Such detention, however, constitutes custody if “a reasonable person in [defendant’s] position would [not feel] at liberty to end the interrogation and leave.” United States v. Brave Heart, 397 F.3d 1035, 1038-39 (8th Cir.2005) (citations omitted). A court looks at the totality of the circumstances at the time of questioning to determine whether a defendant was in custody. United States v. Czichray, 378 F.3d 822, 826 (8th Cir.2004) (citing United States v. Axsom, 289 F.3d 496, 500 (8th Cir.2002)). The following factors aid a court in its analysis: (1)whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; (3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions; (4) whether strong arm tactics or deceptive stratagems were employed during questioning; (5) whether the atmosphere of the questioning was police dominated; or, (6) whether the suspect was placed under arrest at the termination of the questioning. United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir.1990). If present, the first three factors “mitigate against the existence of custody at the time of questioning. Conversely, the last three ... factors ... if present, aggravate the existence of custody.” Axsom, 289 F.3d at 500-01. These factors, however, are non-exhaustive and are not to be mechanically and rigidly applied. Czichray, 378 F.3d at 827. Rather, the ultimate inquiry remains “ ‘whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.’” Id. at 826 (quoting California v. Beheler, 463 U.S. 1121,1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983)). Defendant does not challenge the legality of his initial detention but rather argues 'that the facts in this case establish that he was in custody. This case presents multiple mitigating and aggravating factors. On one hand, ICE agents awakened defendant, told him that they needed to speak with him and detained him in the kitchen. The agents never informed defendant that he was free to leave or that he did not have to answer their questions. Rather, the agents told defendant that he could leave only after disclosing Barrera’s whereabouts. However, after telling them that Barrera was at work, nobody told defendant he could

leave. Moreover, there were nine to eleven law enforcement officials in raid gear with firearms on the premises, all entrances and exits were secured and law enforcement officials were with defendant throughout the incident. Further, four agents were present in the kitchen when Benadum questioned defendant, and defendant was formally arrested soon thereafter.

On the other hand, the questioning was short and routine, and defendant was not placed in handcuffs or otherwise physically restrained. Defendant was questioned at his residence and in the presence of two to three individuals with whom he lived, and there is no evidence that law enforcement officials used strong arm tactics or deceptive stratagem. Further, the actions of the woman questioning the agents’ presence and the agents’ rapid departure in response suggest that a reasonable person in defendant’s situation would have felt at liberty to end the questioning and leave.

Faced with these conflicting factors, the United States argues that Hernandez-Hernandez is dispositive. In Hernandez-Hernandez, a Drug Enforcement Administration taskforce received information about an individual distributing drugs and firearms from his home. 327 F.3d at 705. After identifying an individual outside of a home matching the description of the suspect, a team of nine law enforcement officials from various agencies went to the home. The officials encountered three individuals — one of whom was Hernandez-Hernandez — in the front yard, and after frisking them for weapons told them to take a seat. The individuals were not otherwise physically restrained. While other officials were conducting a consent search of the premises, an Immigration and Naturalization Service (“INS”) agent identified himself and asked Hernandez-Hernandez several questions — including his country of citizenship, his name, whether he had identification, whether he had papers to be in the country legally and whether he was in the country illegally. The agent arrested Hernandez-Hernandez after he admitted that he was in the country illegally. It was later determined that Hernandez-Hernandez had provided a false name and identification to the INS agent, and he was eventually charged with illegal reentry. Independent of whether the law enforcement officials had reasonable suspicion to temporarily detain Hernandez-Hernandez, the court concluded without analysis that he was not in custody because, “[although the agents briefly detained [him] at his home while conducting the consensual search, the facts do not show they restrained him to a degree associated with formal arrest.” Id. at 706.

Similarly, in this case agents formally arrested defendant after questioning him while he was detained with others at his place of residence during a consensual search by several law enforcement officials. However, there are two important differences between Hemandez-Hemandez and this case. First, the agents told defendant that he had to answer some questions, thus suggesting that he did not have the right to leave. Second, defendant was in a confined space surrounded by four armed law enforcement officials and all entrances and exits were secured by other officials. The court determines that these distinctions establish that defendant’s freedom of movement was restrained to a degree associated with formal arrest. Therefore, the court adopts the magistrate judge’s recommendation on this issue. Accordingly, defendant’s responses to Benadum’s questioning are inadmissible at trial.

B. Probable Cause to Arrest

The magistrate judge concluded that the agents lacked probable cause to arrest defendant. (R & R at 43.) In reaching this conclusion, the magistrate judge did not consider defendant’s statements in the kitchen because of the Miranda violation. (Id. at 42.) The Eighth Circuit has not determined whether a court may consider statements made in violation of Miranda in determining probable cause. See United States v. Caves, 890 F.2d 87, 91 n. 3 (8th Cir.1989) (“We also do not decide whether, even if [defendant’s] statements were elicited in violation of Miranda, those statements could nevertheless be considered in establishing probable cause.”).

“Whether the exclusionary rule applies to evidence acquired subsequent to a constitutional violation requires consideration of the possible admissibility of the evidence in light of the distinct policies and interests of each Amendment.” United States v. Fellers, 397 F.3d 1090, 1094 (8th Cir.2005) (citations and quotations omitted). Therefore, the court’s “task is to decide how sweeping the judicially imposed consequences of a failure to administer Miranda warnings should be when the probable cause to arrest derives from an inadmissible pre-arrest statement.” United States v. Morales, 788 F.2d 883, 885-86 (2d Cir.1986) (citations and quotations omitted).

The “core protection afforded by the [Fifth Amendment’s] Self-Incrimination Clause is a prohibition on compelling a criminal defendant to testify against himself at trial.” United States v. Patane, 542 U.S. 630, 637, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004) (plurality opinion) (citations omitted). Confessions or statements obtained in violation of Miranda are presumed compelled and are thus inadmissible at trial. Fellers, 397 F.3d at 1095. “This presumption of compulsion, however, does not bar the use of unwarned statements for impeachment purposes,” nor does it “preclude the introduction of a subsequent warned statement at trial.” Id. at 1095 (citing Oregon v. Elstad, 470 U.S. 298, 310-11, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985)). Moreover, the presumption does not “require! ] suppression of the physical fruits of [a] suspect’s unwarned but voluntary statements.” Pa-tane, 542 U.S. at 633, 124 S.Ct. 2620. Such circumstances do not require exclusion because they do not raise the risk that compelled testimony will be used against a defendant at trial. Cf. Fellers, 397 F.3d at 1095. Likewise, in the absence of “trickery or coercion, there is no justification for requiring a police officer to ignore incriminating admissions in arriving at a conclusion that there is probable cause for an arrest.” Morales, 788 F.2d, at 886; cf. United States v. Patterson, 812 F.2d 1188, 1193 (9th Cir.1987) (statements taken in violation of Miranda can be used in affidavit establishing probable cause to search). In other words, prohibiting consideration of a defendant’s pre-Miranda statements in determining probable cause does not further protect a defendant’s right to be free from compelled testimony at trial. Rather, suppression of the statement at trial provides adequate protection. In this case, because there is no evidence of trickery or coercion by Benadum or the other agents, the court considers defendant’s pre-Miranda statements in determining whether the agents had probable cause at the time of his arrest.

Here, the agents were authorized without a warrant “to arrest any alien in the United States, if [they had] reason to believe that the alien so arrested is in the United States in violation of any [law or regulation made in pursuance of law regulating the admission, exclusion, expulsion or removal of aliens] and is likely to escape before a warrant can be obtained for his arrest.” 8 U.S.C. § 1357(a)(2) (emphasis added). In this context, “ ‘reason to believe’ is the equivalent of probable cause.” United States v. Sanchez, 635 F.2d 47, 63 (2d Cir.1980) (citing Am Yi Lau v. Immigration & Naturalization Serv., 445 F.2d 217, 222 (D.C.Cir.1971)); see also United States v. Varkonyi, 645 F.2d 453, 458 (5th Cir.1981); Lee v. Immigration & Naturalization Serv., 590 F.2d 497, 499-500 (3d Cir.1979). Probable cause exists “when the facts and circumstances are sufficient to lead a reasonable person to believe that [a] defendant has committed or is committing an offense.” United States v. Torres-Lona, 491 F.3d 750, 755 (8th Cir.2007) (citing Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)). There need only be a “probability or substantial chance of criminal activity, rather than an actual showing of criminal activity.” Id. (citation and quotation omitted). Moreover, “[i]n determining probable cause, law enforcement officers may draw inferences based upon their experience.” United States v. CoHez-Palomino, 438 F.3d 910, 913 (8th Cir.2006) (citing Ornelas v. United States, 517 U.S. 690, 700, 116 5.Ct. 1657, 134 L.Ed.2d 911 (1996); Caves, 890 F.2d at 90).

In this case, although not formally arrested, defendant was taken into custody and not free to leave at the time the agents vacated the house. At that time, the agents knew that defendant was an acquaintance of a known immigration fugitive. Moreover, based on their experience, the agents could properly infer that defendant’s responses to Benadum’s questions — that his passport and visa were apparently at his house, but that he did not know the location of his house — were unbelievable. Based upon this information, the agents were authorized to arrest defendant because they had “reason to believe” that he was in the country illegally. Cf. Sanchez, 635 F.2d at 63 (“[Defendant’s] failure to produce any of the required documentation and his inability to give any details whatever as to his status justified ... placing him under arrest.”). Therefore, the court determines that defendant was legally detained. Moreover, because Edgar read and defendant waived his Miranda rights before the questioning in the van, the court determines that defendant’s statements in the van are admissible. Similarly, defendant’s statements at the ICE office are admissible because he again heard and waived his Miranda rights twice — in English and Spanish each time. Finally, because defendant was lawfully detained, the fingerprints taken at the ICE office are also admissible. Cf. Unit ed States v. Guevara-Martinez, 262 F.3d 751, 756 (8th Cir.2001) (fingerprints suppressed because detention was unlawful). Accordingly, the court sustains the United States’ objections and overrules defendant’s objection.

CONCLUSION

Following a de novo review of the file and record, the court adopts in part the report and recommendation of the magistrate judge [Docket No. 41]. Therefore,

IT IS HEREBY ORDERED that:

1. Defendant’s motion to suppress [Doc. No. 8] is denied.

2. Defendant’s motion to dismiss [Doc. No. 18] is denied.

3. Defendant’s motion for determination of status of prior conviction [Doc. No. 19] is denied.

4. Defendant’s motion for reconsideration [Doc. No. 44] is denied as moot.

5. Defendant’s motion to suppress fingerprint exemplars [Doc. No. 45] is denied as moot.

REPORT AND RECOMMENDATION

JANIE S. MAYERON, United States Magistrate Judge.

The above matter came on before the undersigned upon defendant Ricardo Ara-gon-Ruiz’s Motion to Suppress [Docket No. 8], Motion to Dismiss — Legal Invalidity of Prior Deportation [Docket No. 18], and Motion for Court Determination of Prior Conviction [Docket No. 19]. Lisa D. Kirkpatrick, Assistant United States Attorney, appeared on behalf of the United States of America; Bruce D. Nestor, Esq., appeared on behalf of defendant Ricardo Aragon-Ruiz, who was personally present. The matter was referred to the undersigned by the District Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

Based upon the pleadings, the pre-hear-ing submissions, the exhibits submitted at the hearings on November 28, 2007, and January 8, 2008, and the testimony of Special Agents Jason Richards, Ricardo Rocha, Jeffrey Benadum, Patrick Edgar, Frank Hunter, and defendant, it is recommended that defendant’s Motion to Suppress [Docket No. 8] be GRANTED in part and DENIED in part, defendant’s Motion to Dismiss — Legal Invalidity of Prior Deportation [Docket No. 18] be DENIED, and defendant’s Motion for Court Determination of Prior Conviction [Docket No. 19] be DENIED.

I. MOTIONS TO DISMISS AND TO DETERMINE PRIOR CONVICTION

A. Factual Background

Defendant is charged with Unlawful ReEntry After Removal in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2), and 6 U.S.C. §§ 202(3), 202(4) and 557. Indictment, pp. 1-2 [Docket No. 7]. This charge stems from defendant’s removal from the United States subsequent to a conviction for an aggravated felony, aiding and abetting second degree assault, on May 7, 2003. Id. Defendant is alleged to have reentered the country without obtaining the consent of the Attorney General or Secretary of Homeland Security to reapply for admission into the United States. Id.

Defendant is now seeking to dismiss the Indictment on the grounds that his prior removal was legally invalid. Defendant has also moved this Court to determine that the felony conviction that underlies his removal is not an aggravated felony. No witness testimony was presented at the hearing on these motions. Rather, both defendant and the Government relied on exhibits submitted into evidence. The exhibits contained the paperwork surrounding defendant’s removal proceedings. The facts obtained from these exhibits are as follows:

In March of 2003, defendant was arrested for Second Degree Assault. Def. Ex. 1:042, 1:044 (Record of Deportable/Inad-missible Alien). On March 19, 2003, he was interviewed by Special Agent Haase of ICE. Id. At that time, Special Agent Haase read to defendant a form entitled “Notice of Rights” which provided as follows:

You have been detained because the Immigration Service believes that you are in the United States illegally. You have a right to a hearing before the Immigration Court, in order to decide whether you can stay in the United States. In the event that you request this hearing, you have the option of requesting a return to your country as soon as possible, without holding the hearing.

You have the right to contact a lawyer or other legal representative to represent you at the hearing, or to respond to any questions about your rights under the law in the United States. If you request, the official who handed you this Notification will give you a list of legal associations that could represent you either free or inexpensively. You have the right to communicate with the consular service or diplomat of your country. You can use the phone to call a lawyer or other legal representative, or a consular officer at any time prior to your departure from the United States.

Def. Ex. 1:50. Next to the paragraph that followed the preceding paragraphs, titled “Request for Resolution,” defendant placed his initials. This paragraphs states:

I admit that I am illegally in the United States, and do not believe that it would be dangerous to go back to my country. I waive my right to a hearing before an immigration court. I wish to return to my country as soon as they can arrange my departure. I understand that I could be held in custody until my case is settled.

Id.

On May 7, 2003, defendant was convicted of aiding and abetting second degree assault pursuant to Minn.Stat. § 609.222, subd. 1. Def. Ex. 1:033. Defendant was subsequently removed from the United States via a Final Administrative Removal Order entered pursuant to 8 U.S.C. § 1228(b). Id. In order effectuate the removal, on September 27, 2004, ICE mailed to defendant a Notice of Intent to Issue a Final Administrative Removal Order (“Notice of Intent or Form 1-851”) dated September 24, 2003, along with “Form EOIR-41, FORM EOIR-33, and a list of free legal services.” Def. Ex. 1:036. Attached to the Notice of Intent, was an “Addendum to Form 1-851,” also dated September 24, 2004, signed by Special Agent Haase. Def. Ex. 1:039.

The Notice of Intent stated that defendant was eligible for expedited removal proceedings based on the allegations that he was not a citizen of the United States, he was a citizen of Mexico, he entered the United States near San Ysidro, California on or about October 1, 1999 without inspection, he was not lawfully admitted for permanent residence, and he had been convicted on May 7, 2003 of aiding and abetting second degree assault. Id. The Notice of Intent also informed defendant that pursuant to section 238(b) of the Immigration and Nationality Act, the Notice of Intent was being served upon defendant “without a hearing before an Immigration Judge.” Id.

The second page of the Notice of Intent contains two sections, one marked “I Wish to Contest and/or Request Withholding of Removal,” and one marked “I Do Not Wish to Contest or Request Withholding of Removal.” Def. Ex. 1:034. Beneath the section marked “I Do Not Wish to Contest or Request Withholding of Removal,” the box next to the following paragraph was checked. This paragraphs states:

“I admit the allegations and charge in this Notice of Intent. I admit that I am deportable and acknowledge that I am not eligible for any form of relief from removal. I waive my right to rebut and contest the above charges and my right to file a petition for review of the Final Removal Order. I do not wish to request withholding or deferral of removal. I wish to be removed to

Id. In this blank, the words “Mexico (Mexico City)” are handwritten. Id.

Immediately below that paragraph, the box was checked next to the sentence “I waive the 14 day period of execution of the Final Removal Order.” Id. Defendant’s signature is immediately below that sentence, along with the signature of a witness, Steven Briggs. Id.

The Addendum to Form 1-851 stated the following:

You have the right to remain in the United States for 14 days so that you may file a petition for review of this order to the United States Circuit Court of Appeals as provided for in Section 242 of the Immigration and Nationality Act. You may waive your right to remain in the United States for this 14-day period. If you do not file a petition for review within this 14 day period, you will still be allowed to file a petition from outside of the United States so long as that petition is received by the appropriate U.S. Court of Appeals within 30 days of your final order of removal.

Def. Ex. 1:039.

1. Motion to Dismiss

In support of his motion to dismiss, defendant argues that the expedited removal process under 8 U.S.C. § 1228(b) improperly deprived him of any opportunity to seek administrative or judicial review and that he suffered prejudice as a consequence of these improper procedures. Def. Mem., pp. 1-6. [Docket No. 28], Thus, defendant is collaterally challenging the validity of his prior deportation order on grounds that it did not satisfy the requirements of 8 U.S.C. § 1326(d). Id., pp. 4-6.

8 U.S.C. § 1228(b), titled “Removal of aliens who are not permanent residents,” provides, in pertinent part:

(1) The Attorney General may, in the case of an alien described in paragraph (2), determine the deportability of such alien under section 1227(a)(2)(A)(iii) of this title (relating to conviction of an aggravated felony) and issue an order of removal pursuant to the procedures set forth in this subsection or section 1229a of this title.

(2) An alien is described in this paragraph if the alien—

(A) was not lawfully admitted for permanent residence at the time at which proceedings under this section commenced; or

(B) had permanent resident status on a conditional basis (as described in section 1186a of this title) at the time that proceedings under this section commenced.

(3) The Attorney General may not execute any order described in paragraph (1) until 14 calendar days have passed from the date that such order was issued, unless waived by the alien, in order that the alien has an opportunity to apply for judicial review under section 1252 of this title.

(4) Proceedings before the Attorney General under this subsection shall be in accordance with such regulations as the Attorney General shall prescribe. The Attorney General shall provide that—

(A) the alien is given reasonable notice of the charges and of the opportunity described in subparagraph (C);

(B) the alien shall have the privilege of being represented (at no expense to the government) by such counsel, authorized to practice in such proceedings, as the alien shall choose;

(C) the alien has a reasonable opportunity to inspect the evidence and rebut the charges;

(D) a determination is made for the record that the individual upon whom the notice for the proceeding under this section is served (either in person or by mail) is, in fact, the alien named in such notice;

(E) a record is maintained for judicial review; and

(F) the final order of removal is not adjudicated by the same person who issues the charges.

8 U.S.C. § 1228(b).

“[A] collateral challenge to the use of a deportation proceeding as an element of a criminal offense must be permitted where the deportation proceeding effectively eliminates the right of the alien to obtain judicial review.” United States v. Mendoza-Lopez, 481 U.S. 828, 839, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). The Supreme Court’s decision in Mendoza-Lopez was codified in 8 U.S.C. § 1326(d). See United States v. Rodriguez, 420 F.3d 831, 833 (8th Cir.2005) (recognizing § 1326(d) as a codification of Mendoza-Lopez ). The Eighth Circuit construes Mendoza-Lopez, consistent with § 1326(d), “as barring use of a prior deportation order in a § 1326 prosecution when ‘(1) an error in the deportation proceedings rendered the proceedings fundamentally unfair in violation of due process, and (2) the error functionally deprived the alien of the right to judicial review.’ ” United States v. Mendez-Morales, 384 F.3d 927, 929 (8th Cir.2004) (quoting United States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir.1995)).

Pursuant to § 1326(d), an alien may not challenge the validity of the deportation order unless the alien demonstrates that “(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d). These three requirements are conjunctive, and a defendant must establish all three prongs to prevail. United States v. Fernandez-Antonia, 278 F.3d 150, 157 (2d Cir.2002).

In support of his motion to dismiss, defendant contends that the following circumstances effectively eliminated his right to seek administrative or judicial review and rendered his deportation process fundamentally unfair. While defendant was in custody on the state assault charge, he was interrogated on March 19, 2003 by ICE Special Agent John Haase without being provided with notice of the charges against him or a list of free counsel as required by 8 C.F.R. § 287.3(c). Def. Mot., p. 2. Additionally, Special Agent Haase was the officer who both arrested and interviewed defendant; however, 8 C.F.R. § 287.3(a) requires that a separate officer interview defendant. Id. The Form 1-851 was in English, and no written translation was provided to defendant, as required by 8 C.F.R. § 238.1(b)(2)(v). Def. Mem., pp. 2-3. Instead, it appears that a prison guard explained the Form 1-851 to defendant in the “inglish” (sic) language. Id.

On September 27, 2004, the Form 1-851 was sent via Certified Mail to the warden of the Minnesota Correctional Facility in Rush City, where defendant was an inmate. Def. Mem, p. 2; Def. Ex. 1:036-37, 39. The Form states:

You must respond to the above charges in writing to the Service ... within 10 calendar days of service of this notice (or 13 calendar days if service is by mail). The Service must RECEIVE your response within that time period.

Def. Ex. 1:033. (emphasis in original). See also Def. Ex. 1:034 (“ATTENTION: The Service at the above address must RECEIVE your response within 10 calendar days of service from the date of service of this notice (or 13 calendar days if service is by mail).”). (Emphasis in original). The Form 1-851 (and the Addendum to Form 1-851) stated that it was served on “September 24, 2004 via Certified Mail.”

According to defendant, the Form 1-851 was not provided to him until October 9, 2004. Def. Mem, p. 2. This was 15 days after the service date stated on the Form, September 24, 2004, twelve days after the actual mailing of the Form 1-851, and eleven days after the 1-851 was received by the warden at Rush City. Def. Mem., p. 3; Def. Ex. 1:035-036. Since defendant did not receive the 1-851 until 15 days after the service date, he claims that he was effectively precluded from seeking administrative review. Def. Mem., p. 3.

Additionally, defendant contends that the Form 1-851 did not advise him that he could challenge the legal determination that his conviction for aiding and abetting second degree assault constituted an aggravated felony as defined by 8 U.S.C. § 1101(a)(43). Id. The Form 1-851 only stated that defendant could “rebut the charges stated above (with supporting evidence),” implying that only factual and not legal challenges to the 1-851 could be made. Id. Furthermore, the Form 1-851 did not inform defendant of the specific basis for determining that his conviction was an aggravated felony (i.e. that it was a crime of violence); it only informed him that he had been convicted of a generic “aggravated felony.” Def. Mem., p. 4. Therefore, defendant contends that the Form 1-851 failed to provide reasonable notice of the charges against him as required by 8 U.S.C. § 1228(b)(4)(A) and 8 C.F.R. § 238.1(b)(2)®. Id. Finally, defendant cites to the fact that he was incarcerated and indigent at the time the administrative removal was entered as a circumstance that rendered the process fundamentally unfair. Id.

In response to defendant’s contentions, the Government argued that defendant did not satisfy the three requirements set forth in 8 U.S.C § 1326(d) to prevail in a collateral attack, and on that basis his motion to dismiss should be denied. See Gov’t Mem., p. 5.

a. Failure to Exhaust Administrative Remedies

The Government first argued that defendant’s motion to dismiss should be denied because he failed to exhaust his administrative remedies. Instead of responding to the charge that he was deportable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) because he had been convicted of an aggravated felony as defined by 8 U.S.C. § 1101(a)(43) and submitting information to rebut the charge, defendant signed that portion of the Form 1-851 admitting the allegations and charge against him, admitting that he was deportable and not eligible for any form of relief of removal, waiving his right to contest and rebut his removal or defer removal, waiving his right to file a petition for review to the Court of Appeals of the Final Removal Order, and stating that he did not wish to request withholding or deferral of removal. Gov’t Mem., p. 6; see also Def. Ex. 1:034. Defendant did not explicitly address the issue of exhaustion of remedies; rather, he argued that he was effectively precluded from administratively challenging his removal because he did not receive the Notice of Intent until after the deadline for him to respond to the Notice. Def. Mem., p. 4.

The evidence before this Court establishes that the letter sending the Form I-851 and accompanying documents was not sent until September 27, 2004, and was received at the prison where defendant was incarcerated on September 28, 2004. Def. Ex. 1:35-36. Critically, however, no facts or testimony were presented as to when defendant actually received the letter and its contents or when it was explained to him by Steven Briggs, the notary. The only evidence that was presented at the hearing was that defendant signed the Form 1-851 waiving his right to contest his removal proceedings on October 9, 2004, which was 15 days after the date of service stated on the Form 1-851, and that the Form was received by ICE on October 13, 2004, nineteen days after the date of service stated on the Form 1-851. Def. Ex. 1:033. Thus, based on the evidence presented in connection with this motion (and not argument of counsel), the Court concludes that if defendant did receive the Notice of Intent prior to October 7, 2004, he did not exhaust his administrative remedies by timely responding to the Notice, and if defendant did not receive the Notice until October 9, 2004, as his counsel suggests, he was not precluded from exercising his administrative remedies, and he did not do so. The Court reaches the first conclusion — that defendant did not timely respond to the Notice of Intent — because the executed Form 1-851 was received by ICE nineteen days after the date of service, several days after the deadlines set forth in the Notice. The latter conclusion is reached — that defendant was not prevented from exercising his administrative remedies — because he was informed in the Notice of Intent that he could request an extension of time to respond and he never did. See Def. Ex. 1:033 (stating in first line of the third paragraph of the section of the Notice of Intent entitled “Your Rights and Responsibilities”: “In your response you may: request, for good cause, an extension of time ...”).

Furthermore, defendant’s conduct is at odds with any argument that he was prevented from exhausting his remedies. The Form 1-851 explicitly notified defendant of his right to “seek judicial review of any final administrative order by filing a petition for review within 14 calendar days after the date such final administrative order is issued ...” Def. Ex. 1:033. Similarly, the Addendum to the Form 1-851 informed defendant of his right to remain in the United States for 14 days and file a petition of review within that 14-day time period to the appropriate U.S. Court of Appeals, and his right to file such a petition from outside the United States within 30 days of his final order of removal. Def. Ex. 1:039. No evidence was presented that defendant filed or even attempted to file a petition for review of the final removal order to the U.S. Court of Appeals while he was in the United States or within the 30 days after he was removed.

Where no evidence was presented to support arguments that (1) defendant did not challenge the Notice of Intent because he believed it would be futile to challenge the order after the deadline for a response had passed; (2) he was coerced into waiving his rights to challenge the Notice of Intent; or (3) he did not understand the nature of the rights available to him or what he was waiving, this Court concludes that defendant has not met his burden of showing that he exhausted all of his administrative remedies or that he was prevented from doing so. Therefore, defendant fails to meet the first prong of 8 U.S.C. § 1326(d).

b. Deprivation of the Opportunity for Judicial Review

The second prong of § 1326(d) addresses whether the deportation proceedings at which the deportation order was issued improperly deprived the alien of the opportunity for judicial review. Citing to 8 U.S.C. § 1252(a)(2)(C), the Government argued that defendant was not entitled to judicial review because he had been convicted of an aggravated felony. Gov’t Mem., p. 7. Section 1252(a)(2)(C) provides that “... except as provided in subpara-graph (D), no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section ... 1227(a)(2)(A)(iii) ...” However, § 1252(a)(2)(D) states that “[njothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.” 8 U.S.C. § 1252(a)(2)(D). Consistent with 8 U.S.C. § 1252(a)(2)(D), the Notice of Intent and the Addendum to Form 1-851 informed defendant of his right to seek judicial review of any final removal order by filing a petition for review with the appropriate U.S. Court of Appeals within 14 calendar days after the date such final administrative order was issued or within 30 days after the final order of removal if, he was outside of the country. Def. Ex. 1:033, 39.

Based on these provisions, the Court concludes that defendant was not deprived of the right to judicial review.

Defendant’s reliance on Gonzalez v. Chertoff, 454 F.3d 813 (8th Cir.2006), for the proposition that failure to exhaust administrative remedies precludes judicial review, is misplaced. Def. Mem., p. 4. In Gonzales, the Eighth Circuit held that failure to exhaust administrative remedies precluded review of an alleged procedural due process violation that would have been redressable administratively. Id. at 816. Recognizing that it did have subject matter jurisdiction “to review constitutional claims and questions of law” pursuant to 8 U.S.C. § 1252(a)(2)(D), even if they were unexhausted, the Eighth Circuit specifically found that it did not have jurisdiction over unexhausted claims that concerned “ ‘procedural errors correctable by the administrative tribunal.’ ” Id. (citations omitted). See also Ming Ming Wijono v. Gonzales, 439 F.3d 868, 871-72 (8th Cir.2006) (finding court had no subject matter jurisdiction over procedural due process claim).

In this case, the claims at issue concern whether or not defendant’s underlying conviction constituted an aggravated felony such that defendant was eligible for expedited deportation proceedings, an issue which is a question of law. Thus, pursuant to 8 U.S.C. § 1252(a)(2)(D), failure to exhaust administrative remedies in this case would not have precluded judicial review of this question of law by the Eighth Circuit. Defendant was free to argue to the Court of Appeals that his underlying conviction was not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F), and was not deprived of that opportunity. He simply did not pursue his judicial remedy.

The Court finds that defendant was not deprived of his opportunity for judicial review. As such, defendant failed to satisfy the second prong of 8 U.S.C. § 1326(d).

c. Fundamental Unfairness of the Order

The final prong under 8 U.S.C. § 1326(d) requires the Court to determine whether the entry of the deportation order was fundamentally unfair. “An underlying removal order is ‘fundamentally unfair’ if: ‘(1) a defendant’s due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects.’ ” United States v. Calderom-Segura, 512 F.3d 1104, 2008 WL 80705 (9th Cir.2008) (quoting United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir.2004)). Defendant contends that the following defects in his underlying proceeding rendered the process violative of his due process rights and made the process fundamentally unfair: (1) at the time of his arrest in March 2003, he was not provided with notice of the charges against him or a list of free counsel as required by 8 C.F.R. § 287.3(c); (2) Special Agent Haase was the officer who both arrested and interviewed defendant, in violation of 8 C.F.R. § 287.3(a) which requires that a separate officer interview defendant; (3) he did not receive receipt the Notice of Intent on a timely basis; (4) the Form 1-851 did not advise him that he could challenge the legal determination that his conviction for aiding and abetting second degree assault constituted an aggravated felony as defined by 8 U.S.C. § 1101(a)(43), instead implying that only factual and not legal challenges to the I-851 could be made; (5) the Form 1-851 did not inform defendant of the specific basis for determining that his conviction was an aggravated felony (ie. that it was a crime of violence); it only informed him that he had been convicted of a generic “aggravated felony;” and (6) he was incarcerated and indigent at the time the administrative removal. Def. Mem., pp. 2-4. Defendant further argues that he suffered prejudice from the erroneous entry of the Final Administrative Order of Removal because it deprived him of an opportunity to seek voluntary departure. Def. Mem., p. 5.

The Court finds that none of these actions, individually or collectively, rendered the removal order fundamentally unfair or caused defendant prejudice.

Regarding defendant’s contention that there is no record of whether he was provided with notice of the charges against him or a list of free counsel when he was interrogated on March 19, 2003 by Special Agent Haase, while he was in custody at the Hennepin County Jail, the evidence before the Court suggested otherwise. At the time of his interview, Special Agent Haase read to defendant the Notice of Rights Form. Def. Ex. 1:050. Special Haase informed defendant that he had “been detained because the Immigration Service believes that you are in the United States illegally.” Id. In addition, defendant was told that he had the right to contact a lawyer, and that if he requested, Special Agent Haase would provide him with a list of lawyers that could represent defendant for free or inexpensively. Id. Defendant offered no evidence to contradict these facts.

Similarly, the Court rejects defendant’s contention that because Special Agent Haase was the officer who both arrested and interviewed defendant with respect to his immigration violations, contrary to the requirements of 8 C.F.R. § 287.3(a), somehow his removal was fundamentally unfair. Again no evidence was presented to the Court to establish that defendant was both arrested and interviewed by Special Agent Haase. However, even if that were the case, 8 C.F.R. § 287.3(a) also states that “[i]f no other qualified officer is readily available and the taking of the alien before another officer would entail unnecessary delay, the arresting officer, if the conduct of such examination is a part of the duties assigned to him or her, may examine the alien.” Even assuming that Officer Haase arrested and interviewed defendant, the Court does not find that his dual role rendered defendant’s removal order fundamentally unfair.

As to defendant’s argument that the untimeliness of his receipt of the Notice of Intent precluded administrative review of ICE’s intention to remove him, as discussed supra, even if defendant had shown that he received the Notice of Intent after the time period to challenge it, his failure to request an extension of time in which to respond to the Notice, or to ultimately appeal the final removal order to the Court of Appeals, negates such an argument.

With respect to the contention that defendant was deprived of fundamental fairness because the Form 1-851 did not advise him that he could challenge the legal determination that his conviction for aiding and abetting second degree assault constituted an aggravated felony, or the specific basis for determining his conviction amounted to an aggravated felony, the Court finds otherwise. The Form informed defendant, under the title “Charge,” the following: “You are deport-able under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. 1227(a)(2)(A)(iii) as amended, because you have been convicted of an aggravated felony as defined in section 101(a)(43) of the Act, 8 U.S.C. 1101(a)(43).” Def. Ex. 1:033. Immediately above that paragraph, defendant was told that that ICE had determined that he had been convicted of the “offense of Aiding and Abetting 2d Degree Assault in violation of Minnesota State Statute 609.22 for a term of imprisonment of 36 months.” Id. A few paragraphs later, beneath the title “Your Rights and Responsibilities,” defendant was told he may “rebut the charges stated above (with supporting evidence)” and “request an opportunity to review the government’s evidence.” Id. The Form 1-851 informed defendant of the charge, the basis for the charge and that he could rebut the charge. Thus, contrary to his contention, defendant was given reasonable notice of the charge as required by 8 U.S.C. § 1228(b)(4)(A) and 8 CFR § 238.1(b)(2)(i) and the opportunity to refute it factually and legally. Nothing in the Form suggested otherwise.

As to defendant’s suggestion that because he was incarcerated and indigent at the time of the administrative removal, the removal process was fundamentally unfair, it is frequently the case that a person awaiting deportation under § 1228(b) is in custody. In addition, defendant was informed that he could be represented by counsel and was given a list of attorneys who provide free legal services. See Def. Ex. 1:033, 36.

For all of these reasons, the Court finds that defendant’s rights to fundamental fairness and due process were not violated. In addition, the Court concludes that he did not experience prejudice as a result of any alleged defects. To demonstrate that he suffered actual prejudice, defendant must show that “there was a reasonable likelihood that but for the errors complained of the defendant would not have been deported.” United States v. Benitez-Villafuerte, 186 F.3d 651, 658-59 (5th Cir.1999). The Court finds that because he was presumptively deportable due to his conviction for an aggravated felony, he cannot establish actual prejudice. See United States v. Santiago-Ochoa, 447 F.3d 1015, 1020 (7th Cir.2006) (defendant was an aggravated felon, which meant he was conclusively presumed to be subject to removal and unable to show prejudice); United States v. Garcia-Martinez, 228 F.3d 956, 963 (9th Cir.2000) (deportation was a foregone conclusion because defendant was convicted of an aggravated felony); United States v. Martinez-Gonzalez, 203 F.3d 828 at *1 (5th Cir.1999) (where defendant was conclusively presumed to be deportable, his deportation was a foregone conclusion and he could not establish actual prejudice). Here, defendant would have been deported regardless of whether he had been eligible to seek voluntary departure or was subjected to expedited removal. Having failed to establish the three prongs required to collaterally attack the deportation order, the Court therefore recommends that defendant’s Motion to Dismiss be denied.

2. Motion for Determination of Prior Conviction

Defendant also moved the Court to determine whether his underlying conviction constituted an aggravated felony, arguing that such a determination is relevant to not only sentencing but to this Court’s determination of his Motion to Dismiss. Def. Mot. for Court Det. of Prior Conv., ¶ 7. [Docket No. 19]. The Indictment in this case charges defendant with having been previously convicted of aiding and abetting second degree assault in violation of Minn.Stat. § 609.222, subd. 1. This crime is considered an aggravated felony pursuant to 8 U.S.C. § 1101(a)(43)(F) because the Government alleges that it is a “crime of violence” as defined by 18 U.S.C. § 16. Id., ¶ 2. Section 16 requires that an offense have as an element the use, attempted use, or threatened use of force, or that it be a felony and involve a substantial risk that physical force be used, and that the use of force must be intentional. Defendant contends that Minn.Stat. § 609.222, subd. 1, does not have as an element the intentional use of force or necessarily involve a substantial risk of the use of physical force, and therefore asks the Court to determine that defendant’s prior conviction is not “a crime of violence” or an aggravated felony. Def. Mot. for Court Det. of Prior Conv., p. 2.

In response, the Government objected to the motion on the grounds that it was not a proper pretrial motion because defendant could not collaterally attack the removal order at this juncture, and that instead it is a determination that should be made by the trial court at the time of sentencing. Gov’t Response in Opp. to Def. Mot. for Court Det. of Prior Conv., p. 1 [Docket No. 24],

Having concluded in connection with defendant’s Motion to Dismiss that defendant cannot collaterally attack his removal, this Court agrees with the Government that the determination of whether the underlying conviction constituted an aggravated felony under federal law is an issue best left for sentencing. However, in an abundance of caution, as this Court cannot predict the final outcome of defendant’s Motion to Dismiss, the Court will review that determination at this time. See United States v. Modica-Linos, 399 F.Supp.2d 1114 (E.D.Wash.2005) (addressing defendant’s challenge to the determination that his conviction was for an aggravated felony during motion to dismiss indictment for illegal reentry).

8 U.S.C.A. § 1101(a)(43)(F) states that the term “aggravated felony” means .a crime of violence, as defined in section 16 of Title 18, for which the term of imprisonment is at least one year. In turn, 18 U.S.C. § 16 defines a crime of violence as “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

Minn.Stat. § 609.222, subd. 1, states that “[w]hoever assaults another with a dangerous weapon may be sentenced to imprisonment for not more than seven years or to payment of a fine of not more than $14,000, or both.” Assault is defined as “(1) an act done with intent to cause fear in another of immediate bodily harm or death; or (2) the intentional infliction of or attempt to inflict bodily harm upon another.” Minn.Stat. § 609.02, subd. 10.

Defendant argues that the use of force under 18 U.S.C. § 16 must be intentional. The language of § 16 “requires us to look to the elements and nature of the offense of conviction, rather than to the particular facts relating to petitioner’s crime.” United States v. Torres-Villalobos, 487 F.3d 607, 614 (8th Cir.2007) (quoting Leocal v. Ashcroft, 543 U.S. 1, 7, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004)). “Offenses that have no mens rea component or require only a showing of negligence are not crimes of violence under § 16.” Id. at 615 (citation omitted). “For an offense to be a crime of violence under § 16(a), the “active employment” of physical force must be an element of the offense.” Id. (citation omitted). “An with § 16(a), the ‘use’ of force described in § 16(b) requires a risk of ‘active employment’ of force, and not merely ‘accidental or negligent conduct.’ Thus, § 16(b) requires a categorical determination of whether the perpetrator of the offense consciously risks that force will be ‘actively employed’ in the course of committing the offense.” Id. (citation omitted).

The Court finds that second degree assault as detailed in MinmStat. § 609.222, subd. 1, constitutes a crime of violence under § 16(b). Assault, as it is defined in § 609.02, subd. 10, is not a crime of accident or negligence. Intent is required— either intent to put someone in fear of harm or intent to cause bodily harm. The statute does not provide for negligence or recklessness. Even in the non-physical context of intent to cause fear of bodily harm, whatever action is undertaken to instill that fear carries with it a risk that bodily harm actually will occur. Taking into account the dangerous weapon component under § 609.222, subd. 1, threatening a person with a gun carries with it the risk that the gun could go off. Displaying a knife to scare someone carries with it the risk that someone could be cut. The fact that the statute involves a dangerous weapon indicates that the possessor of the dangerous weapon consciously risks that force will be actively employed in the course of committing the assault. Minn. Stat. § 609.222, subd. 1, therefore contains the required ri