United States v. Vargas ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5046
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ENRIQUE MARENTES VARGAS, a/k/a Enrique Vargas, a/k/a
Enrique Merentes-Vargas,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:09-cr-00086-RLW-1)
Argued: December 10, 2010 Decided: January 25, 2011
Before AGEE and DAVIS, Circuit Judges, and David A. FABER,
Senior United States District Judge for the Southern District of
West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Mary Elizabeth Maguire, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Richmond, Virginia, for Appellant. Stephen David
Schiller, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff,
Federal Public Defender, Alexandria, Virginia, for Appellant.
Neil H. MacBride, United States Attorney, Alexandria, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Appellant Enrique Marentes Vargas was convicted of illegal
reentry into the United States under 8 U.S.C. § 1326, which
punishes any deported alien who, without proper authorization,
“enters, attempts to enter, or is at any time found in, the
United States.” The statute of limitations for such an offense
is five years. 18 U.S.C. § 3282. Vargas contends that his
prosecution is barred by limitations. We disagree and affirm.
I.
As explained below, Vargas contends limitations began to
run in 2001 (more than five years before his 2009 indictment),
when he and his employer filed an I-140 Petition for Alien
Worker and an Application for Alien Employment Certification.
These documents included Vargas’s true name and birth date but
failed to report his Alien Number and the fact that he had been
deported previously. Vargas argues that with reasonable
diligence the authorities should have discovered then that he
had reentered the United States illegally, and thus that he was,
at that time, “found in” this country by immigration authorities
within the meaning of § 1326(a)(1). The Government responds with
two arguments. First, it urges that because § 1326 criminalizes
a former deportee’s unauthorized presence in this country, i.e.,
continuing conduct, essentially, prosecution for such an offense
3
can never be barred by limitations while the deportee remains in
the country, because the limitations period does not commence to
run until an alien is arrested by federal authorities. See
United States v. Merentes-Vargas, 2009 WL 1587291, *6 (E.D.Va.
June 5, 2009) (collecting cases) (opinion below). Second, the
Government argues in the alternative that, as the district court
found, Vargas’s I-140 form was deceitful and failed to give
sufficient notice to the immigration authorities of Vargas’s
illegal reentry to trigger the running of the five-year
limitations period.
We conclude that the district court’s finding in this
latter regard is not clearly erroneous; accordingly, we affirm
the judgment.
A.
Vargas is a citizen of Mexico. His true name is in dispute,
though the district court accepted his claim that his true name
is Enrique Marentes Vargas. Likewise, there exists a question as
to his birth date, which the district court found to be July 15,
1964. He illegally entered the United States sometime before
August 1995, when he was convicted in California state court for
selling marijuana. He was first arrested by federal immigration
officials on April 20, 1998 in Omaha, Nebraska.
In connection with the 1998 arrest, federal officers: (1)
assigned Vargas an Alien Number; (2) obtained Vargas’s
4
fingerprints and his photograph; and (3) obtained certain
personal information from Vargas. They entered the information
into a Record of Deportable/Inadmissible Alien. This document
listed Vargas’s name as “Enrique Merentes-Vargas” (rather than
“Enrique Marentes Vargas”) and his date of birth as “July 15,
1961” (not July 15, 1964). J.A. 62. The Government contended in
the court below that Vargas was using an alias and giving
incorrect information, but the district court, rejecting this
contention, found “that there is no evidence that he has
concealed his identity with an alias,” but rather that “he has
consistently used his true name.” J.A. 68. The court found the
discrepancies in the Record were “most likely” due to a
ministerial error. J.A. 68. The Record also lists Vargas’s home
state as Zacatecas, Mexico, and his employer as R.L. Craft
Roofing in Omaha, Nebraska.
Vargas was removed to Mexico on May 14, 1998 after being
served with an I-294 form, which included his Alien Number,
advising him of the penalties of illegal reentry.
B.
By February 1999, Vargas had reentered the United States
without authorization and was working as a roofer for Carey
Oakley & Co. in Sandston, Virginia. In July 1999, he was
convicted of assault and battery, but state officials did not
notify federal officials of Vargas’s presence. On November 30,
5
2001, Carey Oakley & Co. filed an I-140 Petition for Alien
Worker on Vargas’s behalf. Vargas also completed an Application
for Alien Employment Certification, which was sent with the I-
140 petition to the Immigration and Naturalization Service
(INS). These documents listed Vargas’s true name and birth date,
his birthplace as Zacatecas, Mexico, and his prior employment at
R.L. Craft Co. of Omaha, Nebraska (whom he indicated he had
worked for between July 1995 and June 1998). These documents did
not ask about prior deportation or convictions, although the I-
140 petition did ask for an “A# [Alien Number] if any.” This
field was left blank despite the fact that, as just mentioned,
Vargas had been assigned an Alien Number when he was deported
after his 1998 arrest in Nebraska. J.A. 63-64. Immigration
authorities approved Vargas’s I-140 petition in 2002.
C.
Five years later, in August 2007, Vargas filed an I-485
Application for Lawful Permanent Residency. He falsely claimed
in that application that he had not been assigned an Alien
Number and that he not been deported or removed from the country
previously. The application was pending at the time of the
proceedings in the district court.
In February 2009, Vargas was arrested for robbery in
Chesterfield County, Virginia. Immigration and Customs
Enforcement (ICE) officials were notified of the arrest, ran
6
Vargas’s fingerprints, and thereby linked him to his 1998
immigration records. J.A. 65. On March 17, 2009, a federal grand
jury returned a one-count indictment charging Vargas with being
found in the United States after having been previously deported
subsequent to conviction for a felony, in violation of 18 U.S.C.
§ 1326. Vargas pled not guilty and filed a motion to dismiss the
indictment on the ground that the prosecution was time-barred
for the reasons he argues here.
D.
The district court found that Vargas was not “found” in the
United States in 2001 upon the filing of the I-140 petition
because his omission of his Alien Number “was deceptive,” J.A.
68, and more importantly that this omission, coupled with the
incorrect name and birth date in the 1998 records, “prevented
immigration authorities from discovering” that Vargas had
illegally reentered the United States until his 2009 arrest in
Virginia. J.A. 69. Thus, the district court denied the motion to
dismiss.
In due course, Vargas entered a conditional guilty plea,
preserving his right to appeal the issue of limitations. Vargas
brought such a timely appeal, and we review his conviction
pursuant to 28 U.S.C. § 1291.
7
II.
The application of 18 U.S.C. § 3282’s limitations period to
illegal reentry charges brought under 8 U.S.C. § 1326 is a
question of law, which we review de novo. See United States v.
Uribe-Rios, 558 F.3d 347, 351 (4th Cir. 2009); United States v.
McGowan, 590 F.3d 446, 456 (7th Cir. 2009)(“We review de novo
the district court's denial of a motion to dismiss based on
statute-of-limitations grounds, deferring to the district
court's factual determinations.”).
Title 8, § 1326 of the United States Code subjects to
punishment
any alien who— (1) has been . . . deported . . . and
thereafter (2) enters, attempts to enter, or is at any
time found in, the United States, unless (A) prior to
his reembarkation at a place outside the United States
or his application for admission from foreign
contiguous territory, the Attorney General has
expressly consented to such alien’s reapplying for
admission; or (B) with respect to an alien previously
denied admission and removed, unless such alien shall
establish that he was not required to obtain such
advance consent under this chapter or any prior Act.
The governing statute of limitations is 18 U.S.C. § 3282, which
mandates that “[e]xcept as otherwise expressly provided by law,
no person shall be prosecuted, tried, or punished for any
offense, not capital, unless the indictment is found or the
information is instituted within five years next after such
offense shall have been committed.” An offense is “committed,”
8
and the statutory period begins to run, when an offense is
“complete.” Toussie v. United Sates, 397 U.S. 112, 115 (1970).
Seven of the eight courts of appeals to determine the
proper interpretation of § 1326’s “found in” clause as it
relates to the five-year statute of limitations period have held
or strongly intimated, by application of a “constructive
knowledge” principle, that the statutory period begins to run
when immigration authorities know of defendant’s physical
presence and “either know of or, with the exercise of diligence
typical of law enforcement authorities, could have discovered
the illegality of the defendant’s presence.” United States v.
Palomino Garcia, 606 F.3d 1317, 1323 (11th Cir. 2010) (internal
quotation marks omitted); accord United States v. Villarreal-
Ortiz, 553 F.3d 1326, 1329-30 (10th Cir. 2009); United States v.
Santana-Castellano, 74 F.3d 593, 598 (5th Cir. 1996); United
States v. Rivera-Ventura, 72 F.3d 277, 280 (2d Cir. 1995);
United States v. Gomez, 38 F.3d 1031, 1037 (8th Cir. 1994); see
also United States v. Hernandez, 189 F.3d 785, 789-90 (9th Cir.
1999) (relying on majority of circuits’ interpretation); United
States v. DiSantillo, 615 F.2d 128, 132-37 (3d Cir. 1980)
(“[T]he alien is ‘found’ when his presence is first noted by the
immigration authorities.”). The Seventh Circuit, in contrast,
has held, “[c]ontrary to our sister circuits . . . that when the
government ‘should have discovered’ a deportee’s illegal
9
presence in the United States is irrelevant to when the statute
of limitations begins to run . . . .” United States v. Gordon,
513 F.3d 659 (7th Cir. 2008). The Gordon court further held
that, questions of constructive knowledge aside, the
Government’s actual knowledge that a formerly deported alien had
illegally reentered the country would not trigger the five-year
statute of limitations, since the alien’s illegal presence in
the States would constitute a continuing violation of § 1326.
Id. at 664-65.
In Uribe-Rios, we affirmed the denial of a motion to
dismiss a § 1326 prosecution on the ground of limitations.
Specifically, we refused the appellant’s invitation to impute
state officers’ knowledge of an alien’s presence in the United
States to federal immigration authorities, 558 F.3d at 352-53.
Furthermore, we observed that even if a constructive knowledge
theory might be deemed to apply in that case, it would not have
availed the appellant. Id. at 354-55.
We are satisfied that in the case at bar, as the district
court concluded, a constructive knowledge theory would not
benefit Vargas. The district court found that Vargas’s omission
of his Alien Number on his I-140 petition “was deceptive.” J.A.
68. More important, the court found that Vargas’s “failure to
provide his Alien Number on the I-140 petition when it was
completed in 2001, combined with the incorrect identifying
10
information entered onto the 1998 Record, prevented immigration
authorities from discovering that the defendant had entered
after a previous deportation.” J.A. 69 (emphasis added). Thus,
the district court’s findings make clear that federal
authorities could not have discovered, with the exercise of
diligence typical of law enforcement, that Vargas had reentered
the country illegally at the time he submitted the I-140
petition more than five years prior to his indictment in this
case.
Vargas has presented no persuasive evidence the court’s
findings were clearly erroneous. He argues merely that the
similarity of information contained in the I-140 petition and
the 1998 Record of Deportable/Inadmissible Alien should have
been enough to trigger constructive knowledge. Both documents
name R.L. Craft Co. of Omaha, Nebraska as an employer, list
Vargas’s place of birth as Zacatecas, Mexico, and contain
similar names and dates of birth. But Vargas proffered no
evidence that would show that these overlaps would be enough to
alert a reasonably diligent immigration official to the fact
that he had been previously deported, for instance, evidence
that a typical search against all federal immigration databases
in 2001-02 would have flagged the 1998 form as a possible match
to the I-140 petition.
11
Vargas strenuously argues that he “has done nothing to hide
himself from immigration officials” and that the “omission of an
Alien Number . . . does not rise to the level of deception
contemplated by this Court in Uribe-Rios.” Br. of Appellant, at
10-11. But the innocence of the omission is irrelevant to
determining whether federal immigration officials, exercising
that diligence typical of law enforcement, should have
discovered the illegality of Vargas’s presence.
III.
As there is no support in the record to believe that even
the most careful and capable immigration official would have
known to compare the I-140 petition to the 1998 documents, we
are bound to accept the district court’s finding that the
authorities could not have discovered Vargas’s illegal reentry
in 2001-02. Consequently, the district court correctly found
that Vargas’s prosecution was not time-barred. Accordingly, the
judgment is
AFFIRMED.
12