United States v. Gordon, Carl ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1714
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CARL GORDON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 334—Ronald A. Guzman, Judge.
____________
ARGUED NOVEMBER 30, 2007—DECIDED JANUARY 16, 2008
____________
Before BAUER, RIPPLE, and KANNE, Circuit Judges.
BAUER, Circuit Judge. Defendant-Appellant Carl
Gordon is a citizen of Belize who lawfully entered the
United States in 1974. Gordon obtained permanent
resident status and was issued a “green card.” Ten years
later, Gordon committed a series of home invasion robber-
ies, targeting elderly women alone in their homes. In
March of 1985, a Cook County grand jury indicted
Gordon on multiple charges, including home invasion,
residential burglary, armed robbery, robbery, aggravated
battery, and theft. Gordon was found guilty of several of
these charges and was sentenced to concurrent ten and
seven year terms in the custody of the Illinois Department
of Corrections. On January 3, 1990, Gordon was deported
2 No. 07-1714
based on those convictions. Before he was deported, an
immigration judge explained to Gordon that he no
longer was a legal permanent resident and provided him
with an I-294 form, which explained that he needed
permission from the Attorney General to return to the
United States.
Gordon returned to the United States in November of
1995 without obtaining permission from the Attorney
General. The exact date of Gordon’s return is uncertain,
but on appeal, Gordon asserts that it was sometime dur-
ing November of 1995. Gordon reentered via Mexico at
the San Ysidro, California border checkpoint. At that
checkpoint, Gordon presented his green card—which was
still in his possession despite his deportation—to the
Immigration and Customs Enforcement agent and was
allowed to reenter the United States.
On October 12, 2000, Gordon was again arrested on
charges of home invasion and armed robbery of an elderly
woman. On August 8, 2001, he was convicted of these
crimes in Illinois state court and sentenced to twelve
years’ imprisonment. On August 10, 2001, Gordon entered
the custody of the Illinois Department of Corrections to
begin serving his sentence. Standard custodial proce-
dures should have alerted the government to Gordon’s
unlawful presence at this time, but standard procedures,
for some unknown reason, were not followed in this case.
On April 21, 2006, Gordon was interviewed by an
Immigration and Customs Enforcement agent, and he
admitted to the agent that he had illegally reentered
the United States by presenting his authentic but
invalid green card to the inspector at the border. With
this green card, Gordon falsely represented that he was
a lawful permanent resident of the United States.
On May 9, 2006, Gordon was indicted on charges of
being a deported alien illegally present and found in the
No. 07-1714 3
United States without the express consent of the Attor-
ney General, in violation of 8 U.S.C. §§ 1326(a) and
1326(b)(2). This offense has a five-year statute of limita-
tions period from the time the offense is complete. On
June 27, 2006, Gordon moved to dismiss the indictment
arguing that the prosecution was time-barred. Gordon
argued that the government had constructive knowledge
of his illegal presence in the United States as of the
moment he crossed the border at San Ysidro and, through
the exercise of due diligence, the government should have
discovered his crime. Although charged with being “pres-
ent and found” in the United States, Gordon asserted
that this offense was not a continuing one in light of his
entry through an official port of entry and the use of his
real name, date of birth, and alien identification number,
and thus his reentry was not surreptitious. Therefore,
Gordon argued, his offense was complete for statute of
limitations purposes at the time of his successful reentry.
Gordon also claims that he did not know his reentry was
illegal because the I-294 form that he received upon his
removal was confusing and he thought he was allowed
to return after five years.
The government responded that Gordon’s reentry was
surreptitious because the presentation of an invalid green
card concealed the illegality of his presence from the
border authorities exercising normal diligence. And,
because his reentry was surreptitious, the government
argued, the statute of limitations did not begin to run
until the government “actually discovered” Gordon’s
illegal presence in the United States. The government
pointed out that requiring the border authorities to do a
background check on everyone seeking to cross the border,
even when they present an authentic immigration docu-
ment, places an unreasonable burden on border person-
nel. Gordon responded that the border authorities have
computers at their stations for precisely that reason, and
4 No. 07-1714
insisted that background checks on everyone crossing
the border is not too burdensome.
On August 3, 2006, the district court denied Gordon’s
motion, finding that the government could not be expected
to run a background check on every person requesting
permission to enter the United States, especially when he
or she presents authentic immigration documents. The
court held that the government did not have actual or
constructive knowledge of Gordon’s illegal reentry at the
time he crossed the border, and therefore the indict-
ment was not time-barred. On November 14, 2006,
Gordon entered a conditional guilty plea, preserving his
right to appeal the district court’s denial of his motion
to dismiss the indictment.
At the sentencing hearing, the district court concluded
that Gordon’s offense level was twenty-one and his crimi-
nal history score was nine, which placed him in criminal
history category four. This provided for an advisory
guidelines range of fifty-seven to seventy-one months’
imprisonment. The district court then heard arguments
from both parties before sentencing Gordon.
Gordon argued for a sentence below the advisory guide-
lines range. He explained that when he was deported, he
was told by immigration officials that he would be
denied reentry for five years; after that, it was Gordon’s
understanding that he would be allowed to return by
showing his green card to immigration officials. He
claimed that his risk of recidivism and any threat he
posed to the public in the future was significantly dimin-
ished because he would not return to the United States
now that he knew he could not do so legally (without the
permission of the Attorney General). In support of his
arguments, Gordon presented a copy of the I-294 form that
he says was the source of his sincere—albeit incor-
rect—belief that he could return to the United States
No. 07-1714 5
after five years. He also emphasized the fact that he
reentered the United States at an official port of entry
and used his real identity, which was evidence of his
sincere misunderstanding of the restrictions on his
reentry. He said that he did not know his green card
was invalid, despite his deportation in 1990.
The government argued for a sentence of 120 months’
imprisonment, asserting that the guidelines range was
“woefully inadequate” because Gordon preyed on vulnera-
ble and defenseless elderly women, and that Gordon’s
prior deportation for similar crimes had done nothing
to deter him from returning and claiming another
elderly victim. Moreover, the government contended that
Gordon’s criminal history score under-represented the
seriousness of his criminal history, and urged the
district court for an upward departure to 120 months on
the basis that such a sentence was necessary to protect
the public from Gordon. This argument was based on the
fact that seven of Gordon’s prior convictions had been
consolidated for sentencing, which resulted in him receiv-
ing two fewer points for his criminal history score. The
government requested the guidelines range of seventy
to eight-seven months’ imprisonment, which would have
been the guidelines range had Gordon’s prior convictions
not been consolidated. The government further argued
that it could not prevent Gordon from returning to the
United States and continuing his “signature offense” on
society’s elderly women.
Gordon responded that his prior crimes had adequately
been accounted for and that his criminal history score
did not under-represent the magnitude of his criminal
history. Gordon also contended that the government’s
requested 120 months sentence was arbitrary, as it was
not linked to any specific guideline. In a final comment to
the court, Gordon apologized for returning to the United
States, and again stated that he would not return in the
future.
6 No. 07-1714
The district court rejected Gordon’s claim that he did not
know that he could not return to the United States without
permission and that his green card was no longer valid.
The district judge believed that Gordon was being inten-
tionally deceitful when he presented his green card to
immigration officials at the border, as “logic and common
sense” dictated that one’s permanent resident status
(which a green card represents) is revoked when one is
deported. Acknowledging Gordon’s extensive contacts
with the United States and lack of contacts with his
native Belize, the district judge also discredited Gordon’s
promise not to return to the United States again. Noting
Gordon’s criminal inclinations, the district judge said he
was not persuaded that Gordon would not reenter the
United States, despite now knowing it was a federal crime
to do so.
At that point, Gordon requested a sentence of thirty
months’ imprisonment on the basis that the delay in his
prosecution had deprived him of the opportunity for a
concurrent sentence, and that the government’s re-
quested sentence of 120 months would result in a sen-
tence four times the national average for illegal reentry
sentences and approximately twice what his advisory
guidelines range yielded. The district judge rejected
Gordon’s request. He reasoned that, after considering the
Presentencing Report, the sentencing memoranda sub-
mitted by both parties, and the arguments raised, he
was very concerned that Gordon had targeted society’s
most vulnerable citizens numerous times (even after
deportation for the same types of crimes), had completely
disregarded the laws of the United States, and was
likely to return to the United States again and continue
committing his signature offense. The district judge
concluded that he “need[ed] to protect the public,” and
that the guidelines calculation under-represented the
impact of Gordon’s criminal history and the danger to the
No. 07-1714 7
community that he posed. The district judge sentenced
Gordon to ninety-six months’ imprisonment.
Gordon’s first argument on appeal is that the district
court erred when it held that the five-year statute of
limitations for Gordon’s illegal reentry offense was not
triggered until Gordon was taken into custody by the
Illinois Department of Corrections in 2001. Gordon con-
tends that immigration officials had constructive knowl-
edge of Gordon’s illegal presence in the United States in
November of 1995 and thus, the five-year statute of
limitations for the crime of illegal reentry began to run at
the time of his actual return to the United States. Shortly
after the filing of Gordon’s opening brief, this Court
explicitly rejected Gordon’s proposed constructive knowl-
edge standard for statute of limitations purposes on illegal
reentry crimes in United States v. Are, 498 F.3d 460 (7th
Cir. 2007). As a result, Gordon argued in his reply brief
that Are was wrongly decided and should be overturned.
We review de novo whether the limitations period has
run, giving deference to necessary factual determinations
by the district court. United States v. Barnes, 230 F.3d 311,
314 (7th Cir. 2000). We will not reject the district court’s
factual findings unless they are clearly erroneous.
Hernandez v. New York, 500 U.S. 352, 365-66 (1991);
United States v. Greve, 490 F.3d 566, 570 (7th Cir. 2007).
The statute of limitations for noncapital offenses pro-
vides that “no person shall be prosecuted, tried, or pun-
ished for any offense . . . unless the indictment is found . . .
within five years next after such offense shall have
been committed.” 18 U.S.C. § 3282(a). Federal prosecu-
tion for illegal reentry, a noncapital offense, is subject to a
five-year limitations period. See United States v. Clarke,
312 F.3d 1343, 1346 (11th Cir. 2002); see generally Are, 498
F.3d 460 (applying a five-year statute of limitations to a
§ 1326(a) violation). Generally, an offense is “committed”
8 No. 07-1714
when each element of the offense has occurred. Toussie v.
United States, 397 U.S. 112, 115 (1970); United States v.
Yashar, 166 F.3d 873, 875 (7th Cir. 1999). The offense of
illegal reentry pursuant to 8 U.S.C. § 1326(a)(2) is commit-
ted in any of three ways: when the deported alien (1)
enters the United States; (2) attempts to enter the United
States; or (3) is at any time found in the United States.
United States v. Herrero-Ordones, 190 F.3d 504, 509 (7th
Cir. 1999).
An alien commits the offense of being “found in” the
United States if he enters via a surreptitious border
crossing or “enters through a recognized port by means of
specious documentation that conceals the illegality of his
presence.” United States v. Acevedo, 229 F.3d 350, 355 (2d
Cir.) (internal quotations omitted), cert. denied, 531 U.S.
1027 (2000); see United States v. Lopez-Flores, 275 F.3d
661, 663 (7th Cir. 2001) (explaining that, in the case of
surreptitious reentry, the “found in” offense is first
committed at the time of reentry). A deportee who
reenters the United States by presenting an invalid green
card but uses his real name still deceives immigration
officials as to the legality of his presence, and therefore
enters surreptitiously. Acevedo, 229 F.3d at 355.
Gordon first contends that his entry was not surrepti-
tious. We disagree. Gordon entered through a recognized
port by means of an authentic but invalid green card that
concealed the illegality of his return to the United States.
Gordon also claims that he did not know that his green
card was no longer valid despite having been deported.
The district court found this assertion to be unbelievable.
Absent clear error here, we accept the district court’s
conclusion that this assertion was not credible. See Greve,
490 F.3d at 570; see also United States v. Jones, 21 F.3d
165, 168 (7th Cir. 1994) (“It is well-established that the
district court’s factual findings and credibility deter-
No. 07-1714 9
minations are reviewed for clear error.”). Accepting the
district court’s finding that Gordon knew that his green
card was invalid, Gordon’s presentation of that green
card, combined with his non-disclosure of his prior depor-
tation to the immigration officials at his reentry, does
more than merely suggest that his reentry into the United
States was surreptitious. Gordon sought to deceive immi-
gration officials (and did so successfully) as to his legal
status in this country upon his reentry in November
of 1995.
Gordon argues that Are was wrongly decided, because
unlike the other Courts of Appeal, this Court has taken
the burden off of the government entirely by explicitly
rejecting a constructive knowledge standard. Contrary to
our sister circuits, we held in Are that when the govern-
ment “should have discovered” a deportee’s illegal presence
in the United States is irrelevant to when the statute of
limitations begins to run on the deportee’s § 1326(a)
offense. Compare Are, 498 F.3d at 466 (constructive
knowledge is irrelevant to statute of limitations determi-
nation), with United States v. Rivera-Ventura, 72 F.3d 277,
281-82 (2d Cir. 1995) (the statute of limitations begins
when “the authorities know, or with the exercise of
diligence typical of law enforcement authorities, could
have discovered the illegality of his presence”), United
States v. Lennon, 372 F.3d 535, 541 (3d Cir. 2004)
(“[I]llegal re-entry begins, for statute of limitations
purposes, when the alien presents himself non-surrepti-
tiously (i.e. using his own name) at an open point of entry
even though immigration personnel failed to react.”),
United States v. Santana-Castellano, 74 F.3d 593, 598 (5th
Cir. 1996) (statute of limitations starts when alien is
“found,” but barring circumstances that suggest that
immigration officials should have known of deportee’s
presence earlier), United States v. Gomez, 38 F.3d 1031,
1037 (8th Cir. 1994) (statute of limitations begins when
10 No. 07-1714
immigration could have discovered the violation, using
diligence typical of law enforcement authorities), and
Clarke, 312 F.3d at 1347-48 (11th Cir.) (statute of limita-
tions starts when federal government could have discov-
ered through reasonable diligence that deportee was
illegally present in the United States). Gordon asserts
that under Are, the government is allowed to “ignore
all signs of an alien’s presence in the United States
until it decide[s] it want[s] to prosecute him.”
The flip-side of Gordon’s argument, however, is that
so long as an alien hides well for five years after giving
the government a mere sniff of his presence, he cannot
be prosecuted. While blatant flight from justice may
toll the statute of limitations, we need not provide an
incentive to illegal aliens to subtly fly under the govern-
ment’s radar. We believe this to be a compelling reason not
to join our sister circuits on this issue. See Mid-America
Tablewares, Inc. v. Mogi Trading Co., Ltd., 100 F.3d 1353,
1364 (7th Cir. 1996) (reiterating the importance of stare
decisis). Although Gordon makes some valid arguments
challenging the reasoning of Are, we do not find them
compelling enough to overrule Circuit precedent. Thus, we
decline to reconsider or overturn Are.
In Are, this Court held that, for statute of limitations
purposes, “[t]o be ‘found in’ the United States without
permission after deportation means to be ‘present in’ the
United States without permission after deportation; the
immigration agency’s ‘discovery’ of the alien (whether
actual or constructive) is not an element of the offense.”
498 F.3d at 466 (emphasis in original). Being “found in”
the United States at any time is a continuing offense. Id.
at 464; United States v. Rodriguez-Rodriguez, 453 F.3d
458, 460-61 (7th Cir. 2006) (citing United States v. Cores,
356 U.S. 405, 408 (1958)). Hence, “a deportee who has
reentered surreptitiously prolongs his illegal presence in
No. 07-1714 11
the United States each day he goes undetected.” Are, 460
F.3d at 466 (citing Rodriguez-Rodriguez, 453 F.3d at 460).
“The limitations clock does not run during this period
because the deportee’s crime continues; he remains
illegally ‘present in’ the United States.” Id. “[B]ecause the
‘found in’ version of § 1326(a)(2) is a continuing offense,
the date on which the immigration agency ‘should have
discovered’ the alien is simply irrelevant.” Id. Under Are,
the limitations period in an illegal reentry case begins
to run, at the earliest, when the immigration authorities
actually discover the illegal alien’s presence, identity
and status. Id. at 466-67. At the latest, it begins to run
when the alien turns himself in or is arrested. Id.
Both the date of the government’s actual discovery of
Are’s illegal presence in the United States, as well as
his arrest for violating § 1326(a)(2) were within five
years of the date of his indictment for that offense. See
Are, 460 F.3d at 467. Therefore, the facts of the Are case
did not require the Court to commit itself to a single
operative date on which the statute of limitations clock
began to run. In the case now before us, we again need not
assign a single operative date. Because we find that
Gordon’s entry was surreptitious, the government neces-
sarily did not have actual knowledge of his illegal status
upon reentry in November of 1995. Gordon managed to fly
under the government’s radar until October 12, 2000, when
he was arrested for yet another home invasion and
armed robbery of an elderly woman. He was convicted on
August 8, 2001, and entered the custody of the Illinois
Department of Corrections on August 10, 2001. It was not
until an April 21, 2006 interview of Gordon by an im-
migration agent that the government gained actual
knowledge of Gordon’s illegal presence. Because Gordon
was already in custody, there was no date of arrest for
his illegal reentry offense.
12 No. 07-1714
The government concedes that it would have gained
knowledge of Gordon’s illegal presence on August 10, 2001
had standard procedures been followed, and thereby
accepts August 10, 2001 to be the operative date that
triggered the statute of limitations. However, under Are,
constructive knowledge is irrelevant. 498 F.3d at 466.
Despite a failure to follow standard procedures that
would have resulted in actual knowledge, the federal
government did not have actual knowledge of Gordon’s
illegal presence until April 21, 2006. See, e.g., Clarke, 312
F.3d at 1348 (state officials’ knowledge of defendant’s
illegal presence cannot be imputed to federal immigration
officials); United States v. Mercedes, 287 F.3d 47, 55 (2d
Cir. 2002) (same). We point out, however, that even if
we were to use the constructive knowledge date of
August 10, 2001, Gordon’s indictment would still be timely.
Under the standard set forth in Are, the only possible
date from which the statute of limitations could begin to
run is April 21, 2006, the date of the federal government’s
actual discovery of Gordon’s illegal presence. Therefore,
Gordon’s May 9, 2006 indictment was timely, and the
district court properly denied his motion to dismiss the
indictment.
Gordon also argues on appeal that his sentence of ninety-
six months’ imprisonment was unreasonable. Gordon’s
1990 removal was subsequent to an aggregated felony
conviction, therefore Gordon was subject to the harsher
criminal penalties of fines, imprisonment of not more than
twenty years, or both. 8 U.S.C. § 1326(b)(2). Gordon points
out that the sentence was twenty-five months above the
high end of his advisory guidelines range, and argues that
the district court failed to provide a sufficient explanation
for the upward departure.
We review a sentence under an abuse of discretion
standard, regardless of whether the sentence is inside or
No. 07-1714 13
outside of the Sentencing Guidelines range. Gall v. United
States, 552 U.S. ___, 128 S.Ct. 586, 597 (2007). We begin
by ensuring that the district court did not commit any
significant procedural error, “such as failing to calculate
(or improperly calculating) the Guidelines range, treating
the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the
chosen sentence—including an explanation for any devia-
tion from the Guidelines range.” Id. If we find the dis-
trict court’s sentencing decision to be procedurally sound,
we then consider the substantive reasonableness of the
sentence under an abuse of discretion standard. Id.
In sentences outside of the Guidelines range, we must
consider the extent of the deviation from the Guidelines
range, but we must also give due deference to the dis-
trict court’s determination that the § 3553(a) factors,
when taken as a whole, justified the extent of the variance.
Gall, 552 U.S. ___, 128 S.Ct. at 597. Variances from
the Guidelines should be explained and supported with
compelling justifications for such deviations. United
States v. Wachowiak, 496 F.3d 747, 749-50 (7th Cir.
2007). The fact that we “might reasonably have concluded
that a different sentence was appropriate is insufficient
to justify reversal of the district court.” Gall, 552 U.S. ___,
128 S.Ct. at 597. We acknowledge that: “The sentencing
judge is in a superior position to find facts and judge
their import under § 3553(a) in the individual case. The
judge sees and hears the evidence, makes credibility
determinations, has full knowledge of the facts and
gains insights not conveyed by the record.” Id. at ___, 128
S.Ct. at 597 (internal quotation omitted). Because the
district court has greater familiarity with the case and
individual defendant, and because it has an “institutional
advantage over appellate courts in making these sorts
of determinations” (in light of their frequency), we defer,
14 No. 07-1714
absent an abuse of discretion, to its ruling. Id. (quoting
Koon v. United States, 518 U.S. 81, 98 (1996)).
Gordon first argues that his sentence is unreasonable
because it rests upon a clearly erroneous factual finding
that Gordon knew it was illegal to return to the United
States. Gordon contends that the district court did not
credit any of Gordon’s testimony or evidence, thereby
ignoring a crucial mitigating factor. As noted above,
absent clear error, we defer to the district court’s deter-
mination regarding Gordon’s lack of credibility on this
point. Furthermore, the district court did in fact consider
the evidence, namely, the I-294 form that Gordon pre-
sented as the alleged source of his confusion regarding
the legality of his return, in its opinion regarding
Gordon’s motion to dismiss. Again, we find no problem
with the factual conclusion that, when read in its entirety,
the I-294 form made it clear to Gordon that he was not
allowed to return to the United States without permission.
At sentencing, the judge again stated his disbelief that,
after going through deportation proceedings in which his
permanent resident status was revoked, Gordon could have
possibly believed his green card—a memorialization of
permanent resident status—was somehow still valid.
Gordon also asserts that his sentence is unreasonable
because the district judge failed to articulate anything
unique or compelling about Gordon or his criminal history
that would justify a sentence so high above the advisory
guidelines range. We disagree. At the sentencing hearing,
the district judge distinguished Gordon from the hundreds
of thousands of other illegal aliens that enter the United
States each day who come here to work and support
their families. See Koon, 518 U.S. at 113 (“It has been
uniform and constant in the federal judicial tradition
for the sentencing judge to consider every convicted per-
son as an individual and every case as a unique study
in the human failings that sometimes mitigate, sometimes
No. 07-1714 15
magnify, the crime and the punishment to ensue.”).
Instead, as the district judge noted, Gordon came here
to commit crimes and take advantage of the most vul-
nerable people who cannot defend themselves. The dis-
trict judge explained that it did not believe Gordon
would not return to the United States, despite his
promise not to, because his entire family is here, he has
nothing in Belize, he has stated that he was miserable
in Belize, and based on his prior actions, the illegality of
his return to the United States is of no concern to him.
The district judge was also convinced that Gordon would
again prey on the vulnerable members of society and
would use implied or actual violence. These considerations
appropriately related to the nature, circumstances,
and seriousness of the offenses and to the need for just
punishment, adequate deterrence, and the protection of
the public. See 18 U.S.C. § 3553(a)(1), (a)(2)(A)(C); see
also United States v. King, 506 F.3d 532, 536-37 (7th Cir.
2007) (holding that a sentence thirty-four months above
the top of defendant’s advisory guidelines range was
reasonable); United States v. Walker, 447 F.3d 999, 1008
(7th Cir. 2006) (holding that a sentence thirty months
above the top of defendant’s advisory guidelines range
was reasonable). The district court’s explanation was
sufficient reasoning for the variance from the guidelines
range; it was not required to explain each day, week,
or month above the guidelines range it imposed. See
Wachowiak, 496 F.3d at 750 (holding that, if “the sen-
tence chosen is within the broad range of objectively
reasonable sentences in the circumstances, the sentence
will be affirmed.”); United States v. Vitrano, 495 F.3d 387,
390-91 (7th Cir. 2007) (explaining that, post-Booker,
the fact that a district court departs from the advisory
guidelines is not the issue; the issue is whether the
sentence imposed is reasonable). We therefore find
that the district court did not abuse its discretion in
16 No. 07-1714
sentencing Gordon above his advisory guidelines range,
and his sentence was reasonable.
For the foregoing reasons, we AFFIRM the district court’s
denial of Gordon’s motion to dismiss and Gordon’s sen-
tence.
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 pro-
cess. 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
1
The decision in United States v. Are, 498 U.S. 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. 2005)
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
(continued...)
No. 07-1714 17
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 surrepti-
tious entry, even though it occurred at an official border
checkpoint.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
1
(...continued)
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.
USCA-02-C-0072—1-16-08