United States v. Carlos Garcia-Garcia ( 2019 )

Case: 18-11232 Document: 00514961474 Page: 1 Date Filed: 05/17/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 18-11232 Fifth Circuit
Summary Calendar FILED
May 17, 2019
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
CARLOS ELOY GARCIA-GARCIA,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CR-32-1
Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
Carlos Eloy Garcia-Garcia appeals the 71-month within-guidelines
sentence imposed for his conviction of illegal reentry in violation of 8 U.S.C.
§ 1326. He argues that the crime of illegal reentry is complete—and therefore
applying the 2016 Guidelines in his case was an ex post facto violation—when
immigration authorities have constructive knowledge of an alien’s illegal
presence. In the district court, Garcia-Garcia admitted that he was deported
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-11232 Document: 00514961474 Page: 2 Date Filed: 05/17/2019
No. 18-11232
and removed from the United States on or about July 27, 2010, and was found
in Fort Worth, Texas, on or about March 8, 2017; he also claimed that he
reentered the United States on an unknown date in 2010. The Government
moves for summary affirmance and, alternatively, for an extension of time to
file its brief.
In Peugh v. United States, 569 U.S. 530, 533 (2013), the Supreme Court
held that the Ex Post Facto Clause is violated where “a defendant is sentenced
under Guidelines promulgated after he committed his criminal acts and the
new version provides a higher applicable Guidelines sentencing range than the
version in place at the time of the offense.” For ex post facto purposes, the
relevant offense is Garcia-Garcia’s illegal reentry. “A § 1326 offense begins at
the time the defendant illegally re-enters the country and does not become
complete unless or until the defendant is found by [immigration authorities] in
the United States.” United States v. Compian-Torres, 712 F.3d 203, 207 (5th
Cir. 2013) (internal quotation marks and citation omitted); see also United
States v. Santana-Castellano, 74 F.3d 593, 597-98 (5th Cir. 1996). For an alien
to be “found in” the United States for purposes of § 1326, “(1) immigration
authorities must have specifically discovered and noted the alien’s presence,
and (2) knowledge of the illegality of the alien’s presence must be reasonably
attributable to immigration authorities.” Compian-Torres, 712 F.3d at 207.
Garcia-Garcia does not argue on appeal that the facts of his case do not
fall within the holding of Compian-Torres. Rather, he acknowledges that his
argument is foreclosed under Compian-Torres, and he raises his argument to
preserve the matter for further review. In light of the foregoing, the judgment
of the district court is AFFIRMED. The Government’s motion for summary
affirmance is GRANTED, and its alternative motion for an extension of time
is DENIED as unnecessary.
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