United States v. Gordon

RIPPLE, Circuit Judge,

concurring.

I join the judgment of the court and that part of its opinion that holds that the imposed sentence is a reasonable one.

With respect to the statute of limitations issue, I agree that, if United States v. Are, 498 F.3d 460 (7th Cir.2007), is the governing precedent, the timeliness issue in this case can be decided on its authority. As my colleagues note, however, Are set this circuit on a path different from all the other circuits that have addressed this issue. As far as I have been able to ascertain, it did so without affording the entire membership of the court an opportunity to participate in the decision-making process. See Circuit Rule 40(e). Consequently, I have a serious doubt as to whether Are is a viable precedent upon which to predicate today’s decision.¹

Despite these misgivings about the legitimacy of the precedent upon which it relies, I join in the judgment of the court because I do not believe that the Government can be charged with constructive notice when Mr. Gordon presented himself at the border with an invalid, although authentic, green card. Indeed, it seems to me that his actions at that point can be characterized as affirmatively misleading the Government. The Government should not be charged with constructive knowledge of this surreptitious entry, even though it occurred at an official border checkpoint.

1 . The decision in United States v. Are, 498 F.3d 460 (7th Cir.2007), relies in significant part on our previous decision in United States v. Rodriguez-Rodriguez, 453 F.3d 458, 461 (7th Cir.2006) for the proposition that we ought not recognize constructive notice. Rodriguez-Rodriguez was not directly on point, but, to the extent that it can be said to have lighted the way for the panel in Are, I note that Rodriguez-Rodriguez also apparently was never circulated to the entire court under Circuit Rule 40(e), even though, according to the Are panel, it was establishing a conflict among the circuits and disapproving dicta in United States v. Herrera-Ordones, 190 F.3d 504 (7th Cir.1999), that had assumed that the view of the other circuits was correct.