United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
February 13, 2007
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 05-20544
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTHUR GUNERA,
Defendant-Appellant.
Appeal from the United States District Court for
the Southern District of Texas
Houston Division, No. 4:04-CR-574-ALL
_____________________________________________________
Before REAVLEY, JOLLY and BENAVIDES, Circuit Judges.
REAVLEY, Circuit Judge:
Arthur (“Arturo”) Gunera appeals his bench trial conviction for illegal presence in
the United States on grounds that (1) the indictment was barred by the statute of
limitations, (2) the felony and aggravated felony provisions of 8 U.S.C. § 1326(b)(1) are
unconstitutional, and (3) his prior state conviction for simple possession of a controlled
substance should not have been treated as an aggravated felony for sentencing purposes.
We reverse Gunera’s conviction and dismiss the indictment against him.
I. Background
Gunera, a citizen of Honduras, initially entered the United States in July 1990. In
January 1991, he was convicted of possession of a controlled substance under Texas law
and sentenced to three years’ imprisonment. He was released in June 1991 and deported
to Honduras. After a second removal in 1992, Gunera re-entered the United States.
On August 18, 1999, Gunera filed an application with the Immigration and
Naturalization Service (“INS”) for Temporary Protected Status (“TPS”) with the INS’s
Texas Service Center. He provided his true name, date of birth, and place of birth, all of
which had been known to the INS at the time of his 1991 deportation. The application
also contained Gunera’s then-current Texas address. He did not disclose that he had been
previously convicted of a crime and deported, or that he had been issued an alien
registration number (“A-Number”) in the past.
At the same time he submitted his TPS application, Gunera applied for an
employment authorization document (“EAD”). That application was approved and an
EAD issued under the same A-Number under which Gunera had been deported in 1991.
On September 28, 1999, the Texas Service Center ran a NAILS1 inquiry based on
Gunera’s name and date of birth. The inquiry revealed the prior conviction for drug
possession in 1991 and that Gunera had been deported to Honduras in 1991 as an
aggravated felon. The NAILS inquiry provided the same A-Number under which Gunera
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National Automated Immigration Lookout System.
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was deported.
On October 1, 1999, the INS responded to Gunera’s TPS application by
correspondence to the provided home address, informing him of its intent to deny his
application based on discovery of his prior conviction. The correspondence also
informed him that he was required to submit fingerprints if he had not already done so.
On November 23, 2004, Gunera reported to the offices of Immigration and
Customs Enforcement (“ICE”) pursuant to correspondence requesting that he appear for
further processing. He was arrested and held in ICE custody. Gunera moved to dismiss
the illegal presence indictment of December 20, 2004 as being returned more than five
years following the date he was “found” in the United States. Following an evidentiary
hearing on that issue, the district court denied the motion to dismiss. Gunera was
convicted following a bench trial.
Gunera was assessed an eight-level base increase and a Category II Criminal
History based on his prior conviction for possession, resulting in a 15-21 month
sentencing guideline. Gunera objected to the eight-level increase based on the 1991
simple possession and to the constitutionality of 18 U.S.C. §1326(b), both objections
being denied by the district court. The court imposed the minimum Guideline sentence of
fifteen months’ imprisonment with three years of supervised release.
II. Gunera’s Limitations Argument
We review the district court's fact findings in relation to the statute of limitations
for clear error and its legal conclusions de novo. See United States v. Wilson, 322 F.3d
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353, 359 (5th Cir. 2003).
Under 8 U.S.C. § 1326, an alien who has previously been denied entry or been
deported or removed commits the offense of illegal reentry when the alien thereafter
“enters, attempts to enter, or is at any time found in, the United States . . . .” The statute
of limitations applicable to § 1326 is found in 18 U.S.C. § 3282, and provides that ‘no
person shall be prosecuted, tried or punished for any offense, not capital, unless the
indictment is found or the information is instituted within five years after such offense
shall have been committed.”
In United States v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir. 1996), we
adopted the following as the standard for determining when an alien is “found in” the
United States for purposes of § 1326:
. . . we hold 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 immigration authorities.
We have recently recognized that the holding of Santana-Castellano continues to be the
standard by which we determine whether an alien has been “found in” the United States
for purposes of the applicable five-year statute of limitations under 18 U.S.C. § 3282.
See United States v. Flores-Leal, 134 Fed. App’x 691, 692 (5th Cir. 2005).
The Government argues that when an alien employs deception by omitting
information or giving false information, the Government, exercising ordinary diligence,
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cannot be held accountable for knowledge of the alien’s illegal presence. Gunera, the
Government claims, could not be positively identified as being illegally present in the
U.S. since he (1) omitted the facts that he had previously been issued an A-number and
convicted, and (2) failed to submit fingerprints with his TPS application, thus concealing
his true identity. Accordingly, the Government devotes much of its briefing to whether
due diligence could have revealed Gunera’s illegal presence such that the INS should be
charged with constructive knowledge of Gunera’s presence.
However, we believe the immigration authorities can reasonably be attributed with
actual knowledge that Gunera was present illegally in the U.S. on September 28, 1999,
when the NAILS system identified him as having a prior deportation based on a prior
conviction for an aggravated felony, that inquiry having been run on the same name, same
date of birth, and same country of origin as Gunera submitted on his TPS application.
Gunera’s TPS application also provided a U.S. address at which Gunera could be
physically located.
The fact that Gunera omitted information regarding his prior deportation, criminal
history, and A-number from his TPS application is not relevant because the INS had in
fact found that missing information as of September 28, 1999 when the NAILS inquiry
was run. We thus find distinguishable the cases cited by the Government involving the
application of the statute of limitations in the context of illegal reentry prosecutions in
which immigration authorities could not have known of the illegality of the alien’s
presence because the alien gave a false name or omitted other key information in an
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attempt to conceal his identity.
Here, Gunera used his true name, date of birth, and country of origin such that the
agency was readily able to run the NAILS inquiry and discover a fairly certain match
with the previously convicted and deported Arturo Gunera. The October 1, 1999 denial
of Gunera’s application for immigration benefits based on the same conviction that was
revealed in the September 28, 1999 computer print-out is a strong indicator that the
Government had actual knowledge of the illegality of Gunera’s presence as of that date.
To demand the level of extreme certainty of identity the Government advocates
— requiring a fingerprint match to attribute actual knowledge to the immigration
authorities — would impose a standard contrary to Santana-Castellano. As of September
28, 1999, the immigration authorities had in their files all of the relevant information to
match the TPS applicant Gunera with the previously convicted and deported, and
therefore illegally present, alien Gunera. Accordingly, we find that the standard set forth
in Santana-Castellano was satisfied.
In finding that the Center should not be held to the Santana-Castellano standard,
the district court relied on testimony that the Texas Service Center was a processing unit
without investigatory functions and that it was overwhelmed by the volume of
applications. The district court implicitly concludes that knowledge of the INS’s Texas
Service Center is not knowledge of the immigration authorities for purposes of the statute
of limitations. We cannot agree. In 1999, the INS constituted the “immigration
authorities,” with that agency holding responsibility for both processing and investigative
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functions. Further, the Government admitted that there was in fact an Intelligence Unit
stationed at the Texas Service Center, to which adjudicators could refer cases for criminal
investigation, but the Center simply did not refer Gunera’s file for further investigation of
the NAILS inquiry results of 1999 until 2003. This is not a case of attributing
constructive knowledge across distinct agencies. See Fornalik v. Perryman, 223 F.3d
523, 529 (7th Cir. 2000) (“[T]he last we checked, the INS is one unified agency of the
federal government, not a mare’s nest of competing and autonomous actors.”).
III. Conclusion
We conclude that, having been returned more than five years following the date
Gunera was “found” in the United States, the indictment against him was barred by
limitations. We therefore do not reach Gunera’s arguments related to the treatment of his
prior conviction at sentencing. We reverse the denial of Gunera’s motion to dismiss on
limitations grounds and dismiss the indictment. This, of course, has no effect on whether
Gunera is subject to removal.
CONVICTION REVERSED, INDICTMENT DISMISSED.
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