United States v. Jose William Avelar-Amaya , 238 F. App'x 534 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 3, 2007
No. 07-10048 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00170-CR-01-TCB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE WILLIAM AVELAR-AMAYA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 3, 2007)
Before DUBINA, CARNES and HULL, Circuit Judges.
PER CURIAM:
Jose Avelar-Amaya appeals his conviction for illegal reentry into the United
States, in violation of 8 U.S.C. § 1326(a) and (b)(2). After review, we affirm.
I. BACKGROUND
In 1992, Avelar-Amaya, a citizen of El Salvador, was living illegally in Los
Angeles, California. In October 1992, Avelar-Amaya pled guilty to state charges
of selling/transporting narcotics and received a 198-day jail sentence. In May
1993, after serving his sentence, Avelar-Amaya was deported to El Salvador.
Two weeks after returning to El Salvador, Avelar-Amaya applied for an
immigrant visa at the United States Embassy in El Salvador. On his visa
application, Avelar-Amaya falsely denied that he had ever been convicted of a
controlled substance offense or had ever been deported. Avelar-Amaya also failed
to state that he had an alien number and a social security number.
On June 1, 1993, Avelar-Amaya received a visa. On June 19, 1993, Avelar-
Amaya traveled to Los Angeles and presented his visa to United States customs
agents. The customs agents permitted Avelar-Amaya to enter the United States.
On February 1, 2006, Avelar-Amaya was arrested in Georgia on a state
charge of interference with custody. While being housed at the Clayton County
Jail, agents from the Department of Homeland Security (“DHS”) took Avelar-
Amaya’s fingerprints and matched them with his 1993 deportation warrant.
On April 11, 2006, Avelar-Amaya was indicted on one count of being found
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in the United States after having been previously deported and without having
obtained the consent of either the Attorney General or the Secretary of Homeland
Security to reapply for admission, in violation of 8 U.S.C. § 1326(a) and (b)(2).
Specifically, the indictment charged Avelar-Amaya with having been “found in”
the United States on February 16, 2006, which was the date DHS officials matched
Avelar-Amaya’s fingerprints and determined his status as a previously deported
alien.
Prior to trial, Avelar-Amaya moved to dismiss the indictment, arguing that
the indictment was barred by the five-year statute of limitations. Avelar-Amaya
claimed that he was “found in” the United States when customs agents permitted
him to enter the United States in June 1993 and that, therefore, the five-year statute
of limitations had expired in June 1998.
The district court denied Avelar-Amaya’s motion to dismiss the indictment.
The district court declined to find that Avelar-Amaya was “found in” the United
States in 1993 because Avelar-Amaya had knowingly provided false information
to the United States Embassy in El Salvador and withheld material information in
order to obtain his visa.
Pursuant to a written plea agreement, Avelar-Amaya entered a conditional
plea of guilty. In the plea agreement, the parties stipulated to the facts recited
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above. In addition, Avelar-Amaya stipulated that he had never obtained
permission to reapply for entry into the United States after having been deported
and that there were no available records to indicate whether officials conducted a
background check at the United States Embassy in El Salvador in 1993. Avelar-
Amaya also waived his right to appeal his conviction and sentence on any ground
except a sentence higher than the applicable guideline range or the denial of his
motion to dismiss the indictment.
The district court accepted Avelar-Amaya’s plea. Avelar-Amaya was
sentenced to 51 months’ imprisonment. Avelar-Amaya filed this appeal.
II. DISCUSSION
On appeal, Avelar-Amaya contends that the district court abused its
discretion when it denied his motion to dismiss the indictment as time-barred.1
Under 8 U.S.C. § 1326(a), an alien is subject to imprisonment if he has been
previously deported, and then “enters, attempts to enter, or is at any time found in,
the United States” without having obtained the express consent of the Attorney
General to reapply for admission. 8 U.S.C. § 1326(a). The applicable statute of
limitations provides, “Except as otherwise expressly provided by law, no person
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We review a district court’s denial of a motion to dismiss an indictment for an abuse of
discretion, and review the district court’s interpretation and application of the statute of
limitations de novo. United States v. Torres, 318 F.3d 1058, 1061 n.6 (11th Cir. 2003).
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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.” 18 U.S.C. § 3282(a); see United States v.
Clarke, 312 F.3d 1343, 1346 (11th Cir. 2002) (providing that the statute of
limitations for 8 U.S.C. § 1326 is found in 18 U.S.C. § 3282).
A statute of limitations in criminal cases ordinarily begins to run when the
crime is complete. Toussie v. United States, 397 U.S. 112, 115, 90 S. Ct. 858, 860
(1970); United States v. Gilbert, 136 F.3d 1451, 1453 (11th Cir. 1998). “[A]
violation of § 1326 is a continuing offense that can run over a long period of time,
as the offense conduct begins when the alien illegally enters the United States and
continues until the alien is actually ‘found’ by immigration authorities.” United
States v. Scott, 447 F.3d 1365, 1369 (11th Cir. 2006). Thus, the applicable five-
year statue of limitations for a § 1326 offense begins to run when the alien is
“found in” the United States by immigration authorities.
“[A]n alien is constructively ‘found in’ the United States when the
government either knows of or, with the exercise of diligence typical of law
enforcement authorities, could have discovered the illegality of the defendant’s
presence.” Id. (quotation marks omitted). Avelar-Amaya argues that immigration
officials could have discovered his illegal reentry into the United States in June
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1993 if they had acted diligently because his visa contained true identifying
information and he entered at a United States port of entry.
The problem for Avelar-Amaya is that, although Avelar-Amaya used his real
name and date of birth to obtain a visa and enter the United States, he lied about his
prior felony drug conviction in the United States and his resulting deportation.
Thus, when Avelar-Amaya reentered the United States in June 1993, immigration
officials were aware of Avelar-Amaya’s presence in the United States, but were not
aware of the illegality of his presence.
Avelar-Amaya contends that it was unreasonable for customs agents not to
further investigate his immigration status. We disagree. Avelar-Amaya presented
customs agents with a facially valid visa issued by the United States Embassy in El
Salvador. Avelar-Amaya does not contend that the visa (or any other information
he presented) should have put the customs agents on notice that he could not
legally enter the United States or that he had previously been deported. Under the
circumstances of this case, it was not unreasonable for customs agents to admit
Avelar-Amaya without further investigation into whether his presence might be
illegal.2 Indeed, the failure of customs agents to discover the illegality of Avelar-
2
For this reason, United States v. Scott, 447 F.3d 1365 (11th Cir. 2006), is
distinguishable. In Scott, the government was deemed to have constructively “found” the alien
when the alien, who had been arrested and jailed under an alias, confessed to a DHS agent
during an interview not only his true name but also the fact of his prior deportation and illegal
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Amaya’s presence was attributable to not to any lack of diligence on their part, but
to Avelar-Amaya’s successful efforts to conceal his illegal status through the use of
a fraudulently obtained visa.
Thus, Avelar-Amaya was not constructively found in the United States in
June 1993. Rather, Avelar-Amaya was “found in” the United States, and his
offense was complete, in February 2006, when DHS agents discovered the
illegality of Avelar-Amaya’s presence in the United States. See, e.g., United States
v. DeLeon, 444 F.3d 41, 52-53 (1st Cir. 2006) (concluding that, where an alien
used deception to avoid detection by immigration officials at a port of entry, the
alien was not “found in” the United States for statute of limitations purposes when
he entered the United States, but when his status as a deported alien was
discovered through a fingerprint match after he was arrested); United States v.
Acevedo, 229 F.3d 350, 355-56 (2d Cir. 2000) (finding that, a deportee who gained
readmission to the United States by presenting an invalid green card at a port of
entry did not place immigration officials on notice that his presence in the United
States was illegal even though the alien used his real name).
reentry. In other words, the alien in Scott alerted immigration officials to the illegality of his
presence in the United States, making the § 1326 offense complete. Here, Avelar-Amaya
concealed his prior deportation and illegal reentry (i.e., the illegality of his presence in the
United States) from customs agents at the port of entry by using his fraudulently obtained visa.
Thus, immigration officials had to uncover his illegal status through reasonable investigation
after Avelar-Amaya was arrested on state charges and brought to their attention.
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Because the five-year statute of limitations did not begin to run until
February 2006, Avelar-Amaya’s April 2006 indictment was timely. Accordingly,
the district court did not abuse its discretion in denying Avelar-Amaya’s pretrial
motion to dismiss the indictment.
AFFIRMED.
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