United States v. Michel-Duran, Pablo , 231 F. App'x 505 ( 2007 )


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  •                       NONPRECEDENTIAL DISPOSITION
    To be cited only in accordance
    with Fed. R. App. P. 32.1
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Submitted May 10, 2007
    Decided May 10, 2007
    Before
    Hon. JOHN L. COFFEY, Circuit Judge
    Hon. JOEL M. FLAUM, Circuit Judge
    Hon. ANN CLAIRE WILLIAMS, Circuit Judge
    No. 06-3454
    UNITED STATES OF AMERICA,                     Appeal from the United States
    Plaintiff-Appellee,                       District Court for the
    Central District of Illinois
    v.
    No. 06-10015-001
    PABLO GUADALUPE
    MICHEL-DURAN,                                 Michael M. Mihm,
    Defendant-Appellant.                      Judge.
    ORDER
    Pablo Michel-Duran pleaded guilty to being in the United States without
    permission after he was deported. See 
    8 U.S.C. § 1326
    (a). The district court
    calculated a guidelines imprisonment range of 77 to 96 months and sentenced
    Michel-Duran to 70 months’ imprisonment and three years’ supervised release.
    Michel-Duran filed a timely notice of appeal, but his appointed counsel now moves
    to withdraw because he cannot discern a nonfrivolous basis for appeal. See Anders
    v. California, 
    386 U.S. 738
    , 744 (1967). We invited Michel-Duran to respond to
    counsel’s brief, see Cir. R. 51(b), but he has not. We therefore limit our review to
    the potential issues identified in counsel’s facially adequate brief. See United States
    v. Schuh, 
    289 F.3d 968
    , 973-74 (7th Cir. 2002).
    No. 06-3454                                                                    Page 2
    Michel-Duran, a Mexican citizen, entered the United States lawfully in 1993
    but was deported in June 1999 after being convicted of mob action and aggravated
    battery in Illinois. Within two months he had returned to Illinois and was using his
    real name and the same social security number and Illinois driver’s license he had
    used prior to his removal. He also had federal withholdings taken from his
    paychecks. And twice more he was convicted of felonies in Illinois: contributing to
    the delinquency of a minor in 2001, and a drug offense in 2004. In January 2006,
    just before Michel-Duran’s term of imprisonment on the 2004 conviction ended, the
    Illinois Department of Corrections notified Immigrations and Customs Enforcement
    that he might be in the country illegally. Federal authorities then brought the
    § 1326(a) charge, and Michel-Duran moved to dismiss the indictment as barred by
    the five-year statute of limitations. See 
    18 U.S.C. § 3282
    . He argued that, because
    he reentered the United States in 1999 and thereafter used his true name and
    identifying information, immigration authorities could have, with reasonable
    diligence, discovered his presence in the United States more than five years before
    he was indicted. The district court denied the motion, reasoning that federal
    authorities are required to exercise reasonable diligence in prosecuting under
    § 1326(a) only after learning of the defendant’s presence in the United States, and
    that the standard was met in the present case. Michel-Duran pleaded guilty,
    reserving in writing the right to challenge on appeal the denial of his motion to
    dismiss.
    Counsel first considers whether Michel-Duran might argue that the district
    court erred in denying his motion to dismiss the indictment. Counsel informs us
    that, unless this potential argument should prove to be meritorious, Michel-Duran
    does not wish to have his guilty plea vacated. Thus counsel properly refrains from
    analyzing any other potential argument concerning Michel-Duran’s guilty plea. See
    United States v. Knox, 
    287 F.3d 667
    , 671 (7th Cir. 2002).
    The five-year statute of limitations set forth in 
    18 U.S.C. § 3282
     governs
    actions brought under § 1326(a). United States v. Gunera, 
    479 F.3d 373
    , 376 (5th
    Cir. 2007); United States v. DeLeon, 
    444 F.3d 41
    , 51 (1st Cir. 2006); United States v.
    Clarke, 
    312 F.3d 1343
    , 1346 (11th Cir. 2002); United States v. Acevedo, 
    229 F.3d 350
    , 354-55 (2d Cir. 2000); see also United States v. Rodriguez-Rodriguez, 
    453 F.3d 458
    , 461 (7th Cir. 2006). The statute of limitations “begins to run when the crime is
    ‘complete,’” Clarke, 
    312 F.3d at 1346
    , so, it began to run, for the purposes of this
    case anyway, when Michel-Duran was “found in” the United States. Under
    § 1326(a), an alien is “found in” the United States when immigration authorities
    “both discover[] his presence in the United States and know[] that, because of his
    identity and status, his presence here is illegal.” United States v. Herrera-Ordones,
    
    190 F.3d 504
    , 510 (7th Cir. 1999). Even if the government is required to use
    reasonable diligence in investigating whether an alien’s presence is illegal, compare
    
    id.
     at 511 with Rodriguez-Rodriguez, 
    453 F.3d at 460-62
    , counsel correctly notes
    No. 06-3454                                                                       Page 3
    that nothing here suggests a lack of such diligence on the part of ICE. Although
    Michel-Duran’s counsel suggested to the district court that ICE should have
    discovered his illegal presence by screening state arrest or driver’s records,
    notification to state authorities is not the same as notification to federal authorities.
    See Clarke, 
    312 F.3d at 1348
    . Nor did Michel-Duran establish that ICE could have
    discovered his presence through his payment of federal taxes; he did not show that
    ICE even had access to information regarding his payment of federal taxes, which is
    handled by a separate federal agency. See Acevedo, 
    229 F.3d at 355
     (rejecting
    defendant’s argument that immigration authorities were not diligent in discovering
    that his presence was unlawful where he did not even suggest that immigration
    authorities had ability to perform investigation he advocated); Gunera, 
    479 F.3d at 377
     (suggesting that constructive knowledge of alien’s illegal presence cannot be
    “attribut[ed] across distinct agencies”). Here, Michel-Duran was indicted within a
    week of ICE’s discovery that he was back in the United States. Thus, we agree with
    counsel that it would be frivolous to argue that ICE did not act with reasonable
    diligence or that the district court erred in refusing to dismiss the indictment.
    Counsel also considers whether Michel-Duran could challenge the
    reasonableness of his below-range prison sentence. Counsel, though, is unable to
    identify any factor that would have compelled a lower sentence, whether or not we
    presume that a sentence within the properly calculated guidelines range is
    reasonable. Cf. United States v. Rita, No. 05-4674, 
    2006 WL 1144508
     (4th Cir. May
    1, 2006), cert. granted, 
    75 U.S.L.W. 3246
     (U.S. Nov. 3, 2006) (No. 06-5754). Neither
    has counsel identified anything that would make Michel-Duran’s sentence an
    exception to our general observation that “[i]t is hard to conceive of below-range
    sentences that would be unreasonably high.” See United States v. George, 
    403 F.3d 470
    , 473 (7th Cir. 2005). Moreover, the district court meaningfully considered the
    factors set forth in 
    18 U.S.C. § 3553
    (a), see United States v. Laufle, 
    433 F.3d 981
    ,
    987 (7th Cir. 2006), and addressed and rejected Michel-Duran’s arguments for an
    even lower sentence. We thus agree with counsel that it would be frivolous to argue
    that Michel-Duran’s sentence is unreasonable.
    Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is
    DISMISSED.