United States v. Flores-Leal ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 10, 2005
Charles R. Fulbruge III
Clerk
No. 04-20259
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EVARISTO FLORES-LEAL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(4:03-CR-340-ALL)
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Evaristo Flores-Leal (“Flores”) appeals
his conviction following a jury trial for being found in the United
States, on August 1, 2003, following deportation subsequent to a
conviction for an aggravated felony, in violation of 8 U.S.C. §
1326(a). Flores argues that the district court erred in refusing to
dismiss the indictment on the ground that the five-year statute of
limitations had expired. He asserts that the limitations period
began on one of two alternative dates: (1) November 11, 1993, when
*
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this opinion should not be published and is not precedent except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.
he appeared at a port of entry and reentered the United States by
presenting facially valid immigration documents, or (2) April 5,
1998, when he submitted to the Immigration and Naturalization
Service a request for his immigration file under the Freedom of
Information Act (“FOIA”).
Under 8 U.S.C. § 1326(a), it is a crime for an alien who has
been deported to be “found” in the United States. In United States
v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir. 1996), we held
that “a previously deported alien is ‘found in’ the United States
when his physical presence is discovered and noted by the
immigration authorities, and the knowledge of the illegality of his
presence, through the exercise of diligence typical of law
enforcement authorities, can reasonably be attributed to the
immigration authorities.” “[T]he five-year statute of limitations
under 8 U.S.C. § 1326 begins to run at the time the alien is
‘found,’ barring circumstances that suggest that the INS should
have known of his presence earlier . . . .” Id. We review the
district court’s fact findings for clear error and its legal
conclusions de novo. See United States v. Wilson, 322 F.3d 353,
359 (5th Cir. 2003).
Flores’s first argument, that he was found in the United
States when he appeared at the port of entry and entered the
country on November 11, 1993, is unavailing. The government was
not put on notice by the facially valid documents that the entry
was illegal, and the “due diligence” required of immigration
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officials to discover an alien’s illegal presence does not impose
a duty to conduct background checks on every alien who attempts to
enter the country by presenting ostensibly valid papers.
Neither did Flores’s FOIA request, which was signed and
submitted by his counsel, put the government on notice of Flores’s
illegal presence. Although Flores signed the document authorizing
his counsel to receive the requested information, the document does
not provide an address for Flores or clearly indicate whether
Flores was in the United States when he signed it. Because of
these ambiguities, Flores cannot show that his presence in the
United States was actually “discovered and noted by immigration
authorities.” See Santana-Castellano, 74 F.3d at 598.
The district court’s judgment is
AFFIRMED.
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