IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10381
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE APOLINAR TORRES-LOPEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
(3:00-CR-166-1)
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November 2, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Jose Apolinar Torres-Lopez (“Torres”)
appeals from a conditional guilty plea for illegal re-entry after
deportation by an aggravated felon. 18 U.S.C. § 1326(a),(b)(2).
Torres contends that the district court erred in denying his motion
to dismiss his indictment, arguing the government issued it after
the limitations period expired.
We review de novo the district court’s interpretation of the
limitations provisions of 8 U.S.C. § 1326. United States v.
Manges, 110 F.3d 1162, 1169 (5th Cir. 1997)(citation omitted). We
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
review for clear error the court’s fact findings. Anderson v. City
of Bessemer City, 470 U.S. 564, 573 (1985); see United States v.
Meador, 138 F.3d 986, 991 (5th Cir. 1998). Under the clearly
erroneous standard, if the court’s account of the evidence is
plausible in light of the record viewed in its entirety, we will
not reverse that court even though convinced that had we been
sitting as the trier of fact, we would have weighted the evidence
differently. Id. When there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly
erroneous. Id. at 573-74.
The time for prosecuting violation of § 1326 is set out in 18
U.S.C. § 3282, which establishes a five-year limitations period for
bringing non-capital offenses. See United States v. Santana-
Castellano, 74 F.3d 593, 597 (5th Cir. 1996). Limitations begin to
run on the completion of the offense. Toussie v. United States,
397 U.S. 112, 115 (1970). Section 1326(a)(2) specifies separate
occasions when the offense of illegal re-entry by a deported alien
is complete: (1) when he illegally enters the United States; (2)
when he attempts to enter the United States illegally; or (3) when
he is found in the United States. Santana-Castellano, 74 F.3d at
597. A previously deported alien is “found in” the United States
when, first, his physical presence is noted and discovered by
immigration authorities and, second, the knowledge of the
illegality of his presence, through the exercise of diligence, can
reasonably be attributed to immigration authorities. Id.
2
Based on the record, the district court did not err, clearly
or otherwise, when it found that Torres failed to establish his
completion of re-entry under the physical-presence prong of § 1326
at any time earlier than the five-year limitations period before
the indictment. The court did not clearly err when it so found.
Accordingly, the judgment of the district court is
AFFIRMED.
3