United States v. Nicolas Perez-Garcia , 462 F. App'x 336 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4395
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
NICOLAS PEREZ-GARCIA,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:10-cr-00220-TDS-1)
Submitted: January 9, 2012 Decided: January 19, 2012
Before NIEMEYER, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Yvette M. Mastin, YVETTE M. MASTIN, P.C., Houston, Texas, for
Appellant. Ripley Rand, United States Attorney, Terri-Lei
O’Malley, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nicolas Perez-Garcia appeals his conviction, pursuant
to a conditional guilty plea, of illegal reentry into the United
States, 18 U.S.C. § 1326 (2006). Perez-Garcia contends that the
applicable five-year limitations period, 18 U.S.C. § 3282(2006), began to run in 2001 and had expired well before the
indictment was returned in 2010. We affirm.
I
Perez-Garcia, a native of Mexico, was convicted in
1989 of conspiracy to smuggle, transport, and harbor illegal
aliens and harboring illegal aliens. He was deported to Mexico
in 1992. His fingerprints and signature were placed on the
Warrant of Removal, and he was assigned an Alien Number
(A-Number). He reentered the United States in 2001 without
inspection and without the permission of the Attorney General or
his successor, the Director of Homeland Security.
In April 2001, Perez-Garcia’s sister, Margarita
Garcia-Perez (Margarita), completed an I-130 Petition for Alien
Relative on behalf of Perez-Garcia. The petition included some
accurate information about Perez-Garcia. However, Margarita did
not answer a question concerning whether her brother had “ever
been under immigration proceedings,” and she responded “none” in
a box requesting the defendant’s A-Number.
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A notation on the I-130 petition states that on
May 14, 2007, immigration officials completed a check of Perez-
Garcia on the Interagency Border Inspection System (IBIS). An
internal memorandum, dated May 16, 2007, which noted his status
as a previously deported felon, was placed in his Alien
Registration File (A-File). On May 23, 2007, U.S. Citizenship
and Immigration Services (USCIS) approved the I-130 Petition,
meaning that Perez-Garcia was approved to apply for a change of
immigration status as a family member of a legal resident. The
notation on the I-130 petition, the internal memorandum, and the
USCIS approval all contained Perez-Garcia’s assigned A-number.
Following Perez-Garcia’s arrest on state charges, an
Immigration and Customs Enforcement agent interviewed him in
Asheboro, North Carolina, on June 1, 2010. The agent took
Perez-Garcia’s fingerprints and used them to identify
Perez-Garcia as the alien who was convicted of an aggravated
felony, assigned an A-Number, and deported in 1992.
Perez-Garcia was charged on June 28, 2010, with
illegal reentry by a convicted felon, 18 U.S.C. § 1326(a),
(b)(2). He moved to dismiss the indictment, claiming that the
prosecution was barred by the five-year statute of limitations
set forth in 18 U.S.C. § 3282(a). He contended that the
limitations period began to run once he was “found” in the
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United States, and that he was found here in 2001, when his
sister submitted the I-130 petition.
At a hearing on the motion, the district court
determined that the earliest that federal immigration
authorities were aware of Perez-Garcia’s presence in this
country following his previous deportation was May 2007. The
court rejected the defendant’s contention that the statute began
to run in 2001. The court noted that the I-130 petition was
deceptive in two critical respects: Margarita responded “none”
to the question about her brother’s A-Number; and she failed to
answer the question, “Has your relative ever been under
immigration proceedings?” Because the indictment was filed
within five years of May 2007, the prosecution was not time-
barred, and the court denied the motion to dismiss.
Perez-Garcia then entered a conditional guilty plea,
reserving the right to appeal the district court’s ruling on the
motion to dismiss. He was sentenced to fifty-four months in
prison.
II
Application of the five-year limitations period to
illegal reentry charges brought under § 1326 is a question of
law subject to de novo review. United States v. Uribe-Rios, 558
F.3d 347, 351 (4th Cir. 2009). We agree with the district court
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that the limitations period began to run in May 2007, when
immigration officials discovered Perez-Garcia’s A-Number and
learned that he was a previously deported felon. We reject
Perez-Garcia’s contention that the period began to run in 2001,
when his sister submitted the I-130 form. That form was
deceptive for the reasons found by the district court. Without
this highly relevant information, law enforcement officials
exercising due diligence could not reasonably have been
expected, in 2001, to recognize that Perez-Garcia was the same
person who had been deported in 1992. Perez-Garcia has not
proffered anything that would show otherwise.
We therefore hold that the limitations period began to
run in 2007. The indictment, returned in 2010, was filed within
the applicable five-year period.
III
We accordingly affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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