United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 5, 2003
Charles R. Fulbruge III
Clerk
No. 03-20235
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR RENE CANO-BENAVIDES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-176-ALL
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Oscar Rene Cano-Benavides was convicted following a bench
trial for being found in the United States, on December 11, 2001,
following deportation, in violation of 8 U.S.C. § 1326(a). Cano
has appealed his conviction.
Cano contends that the district court erred in refusing to
dismiss the indictment on the ground that the five-year statute of
limitations had expired because he was first “found in” the United
States on October 24, 1994, the date on which his sister filed a
*
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this opinion should not be published and is not precedent except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.
No. 03-20235
-2-
visa petition on his behalf. Cano contends also that the district
court erred in denying his request that the jury be required to
determine when he was “found in” the United States.
Under 8 U.S.C. § 1326(a), it is a crime for an alien who has
been deported to be “found” in the United States. In United States
v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir. 1996), we held
that “a previously deported alien is ‘found in’ the United States
when his physical presence is discovered and noted by the
immigration authorities, and the knowledge of the illegality of his
presence, through the exercise of diligence typical of law
enforcement authorities, can reasonably be attributed to the
immigration authorities.” “[T]he five-year statute of limitations
under 8 U.S.C. § 1326 begins to run at the time the alien is
‘found,’ barring circumstances that suggest that the INS should
have known of his presence earlier . . . .” Id. The district
court’s fact findings are reviewed for clear error and its legal
conclusions are reviewed de novo. See United States v. Wilson, 322
F.3d 353, 359 (5th Cir. 2003).
Cano argues that the visa petition notified the Immigration
and Naturalization Service (“INS”) of his presence in the United
States and that the form provided sufficient information from which
the INS could have determined the illegality of his status. He
contends that it was not reasonable for the INS to fail to discover
the illegality of his presence in the United States.
No. 03-20235
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But, in the visa petition, Cano’s sister did not disclose
Cano’s previous deportation nor his identification number as
requested. Because of these ambiguities in the visa petition, Cano
cannot show that his presence in the United States was actually
“discovered and noted by immigration authorities.” See Santana-
Castellano, 74 F.3d at 598. The district court’s finding that the
INS did not have actual knowledge that Cano was the intended
beneficiary of the visa petition was not clearly erroneous.
A defendant is entitled to a jury instruction “as to any
recognized defense for which there exists evidence sufficient for
a reasonable jury to find in his favor.” United States v. Branch,
91 F.3d 699, 711-12 (5th Cir 1996). Based on the failure of the
visa petition to clearly identify Cano, the district court did not
err in finding that, as a matter of law, Cano was not “found” by
the INS by virtue of the petition. For those reasons, the district
court did not err in refusing to dismiss the indictment because the
limitation period had run or in refusing to require the jury to
determine the “found in” date.
Cano contends that the district court erred in failing to
dismiss the indictment because his 1986 conviction for delivery of
heroin, for which his sentence was enhanced under 8 U.S.C.
§ 1326(b), was not defined by Title 8 as an “aggravated felony” at
the time the offense was committed. The court rejected the same
argument in United States v. Saenz-Forero, 27 F.3d 1016, 1018–22
(5th Cir. 1994) (analyzing issue under Ex Post Facto Clause).
No. 03-20235
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Thereafter, by § 321(b) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 STAT.
3009 (1997) (“IIRIRA”), Congress amended the statutory “aggravated
felony” definition to clarify that the definition “applies
regardless of whether the conviction was entered before, on, or
after September 30, 1996.” See 8 U.S.C. § 1101(a)(43). The
amended definition applies “to actions taken on or after the
[enactment date of the IIRIRA], regardless of when the conviction
occurred, and shall apply under section 276(b) of the Immigration
and Nationality Act [8 U.S.C. § 1326(b)] only to violations of
section 276(a) of such Act occurring on or after such date.”
IIRIRA § 321(c). The violation in this case occurred on December
11, 2001, after the effective date of IIRIRA § 321. Accordingly,
the amendment to 8 U.S.C. § 1101(a)(43) is applicable. See United
States v. Herrera-Solorzano, 114 F.3d 48, 50 (5th Cir. 1997). The
district court did not err in refusing to dismiss the indictment
because Cano’s prior conviction was not defined as an “aggravated
felony” at the time it was committed. The conviction is
AFFIRMED.