United States v. Sergio Diaz-Hinojos ( 2018 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
MAY 29 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 16-30086
Plaintiff-Appellee, D.C. No.
9:15-cr-00018-DLC-1
v.
SERGIO DIAZ-HINOJOS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief Judge, Presiding
Argued and Submitted March 7, 2017
Portland, Oregon
Before: O’SCANNLAIN, FISHER and FRIEDLAND, Circuit Judges.
Sergio Diaz-Hinojos appeals his conviction for illegal reentry, contending
the district court erred by denying his motion to dismiss the indictment as
untimely. We have jurisdiction under 28 U.S.C. § 1291, we review de novo, see
United States v. Jenkins, 633 F.3d 788, 797 (9th Cir. 2011), and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
“Section 1326 sets forth three separate offenses for a deported alien: to
‘enter,’ to ‘attempt to enter,’ and to be ‘found in’ the United States without
permission.” United States v. Parga-Rosas, 238 F.3d 1209, 1213 (9th Cir. 2001).
Prosecutions under § 1326 are governed by a five-year statute of limitations. See
18 U.S.C. § 3282(a); United States v. Reyes-Ceja, 712 F.3d 1284, 1289 & n.30 (9th
Cir. 2013). The statute of limitations begins to run when the offense is completed,
and an offense under the “found in” prong is completed “when an alien is
discovered and identified by the immigration authorities.” United States v.
Hernandez, 189 F.3d 785, 791 (9th Cir. 1999). We have not yet decided, however,
“whether such discovery and identification must be based on the government’s
actual knowledge or can instead be proven under a constructive knowledge
theory.” United States v. Zamudio, 787 F.3d 961, 966 (9th Cir. 2015). We need
not decide this question here.
Even assuming that a constructive knowledge standard governs and that it is
knowledge by the immigration authorities that matters, Diaz cannot show such
constructive knowledge here. There is no evidence that immigration authorities
were willfully blind to information in their possession, or that they unreasonably
refrained from taking their usual investigative steps. The fact that immigration
2
authorities could have implemented a hypothetical system for scouring the files of
other agencies does not suffice.
In sum, the indictment was timely. The district court therefore properly
denied Diaz’s motion to dismiss. The judgment is affirmed.
AFFIRMED.
3