PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FAUSTO URIBE-RIOS, a/k/a No. 07-4803
Francisco Medina, a/k/a Efrain
Gomez Gonzalez, a/k/a Francisco
Uribe-Rios,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert J. Conrad, Jr., Chief District Judge.
(3:06-cr-00395-RJC)
Argued: October 30, 2008
Decided: March 4, 2009
Before GREGORY and DUNCAN, Circuit Judges, and
Richard D. BENNETT, United States District Judge for the
District of Maryland, sitting by designation.
Affirmed by published opinion. Judge Duncan wrote the opin-
ion, in which Judge Gregory and Judge Bennett concurred.
COUNSEL
ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS
OF WESTERN NORTH CAROLINA, INC., Charlotte, North
2 UNITED STATES v. URIBE-RIOS
Carolina, for Appellant. Adam Christopher Morris, OFFICE
OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee. ON BRIEF: Claire J. Rauscher, Exec-
utive Director, Steven Slawinski, FEDERAL DEFENDERS
OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Charlotte, North Carolina, for Appellee.
OPINION
DUNCAN, Circuit Judge:
Appellant, Fausto Miguel Uribe-Rios, appeals his convic-
tion and sentence under 8 U.S.C. § 1326 for being "found in"
the United States without the permission of the Attorney Gen-
eral after having previously been deported for an aggravated
felony. Appellant reentered the United States under an alias
and was later arrested and convicted by North Carolina
authorities for drug trafficking. Upon his release from state
prison after a five-year sentence, Appellant was interviewed
by federal immigration authorities. During that interview,
Appellant revealed his real identity and unauthorized presence
in the United States. Eight days later, Appellant was indicted
under section 1326. Appellant moved to dismiss the indict-
ment on statute of limitations, venue, and pre-indictment
delay grounds. After the district court denied the motion,
Appellant pleaded guilty and was sentenced. On appeal,
Appellant raises the same arguments and also challenges his
sentence on Fifth and Sixth Amendment grounds. For the rea-
sons set forth below, we affirm.
I.
Appellant Fausto Miguel Uribe-Rios, a citizen of Mexico,
has been deported from the United States on at least five sepa-
rate occasions in ten years, at least once after having been
UNITED STATES v. URIBE-RIOS 3
convicted of an aggravated felony. He unlawfully reentered
the United States in 1997 and was subsequently arrested by
North Carolina law enforcement officials for drug trafficking
in August 2000.
The record shows that Appellant used over thirty aliases
during his time in the United States, including, but not limited
to, "Francisco Rios Medina," "Francisco Uribe-Rios," "Efrain
Gomez-Gonzalez," "Jose Antonio Bautista Cobos," "Victor
Gomez-Gomez," "Adolfo Rios Medina," "Ruben Hureverios,"
and "Paco Gomez." J.A. 175. Following his arrest in 2000, he
was prosecuted under the name "Francisco Rios Medina" in
Wake County, which is located in the Eastern District of
North Carolina. On January 26, 2001, following a trial in
North Carolina state court, he was sentenced to six years in
state prison.
Although Appellant was initially incarcerated in a facility
located in the Eastern District of North Carolina, in December
2004 he was transferred to a different facility located in the
Western District of North Carolina where he served the
remainder of his state prison term. Before the transfer
occurred, federal immigration authorities placed a detainer1 on
Appellant under the name "Francisco MEDINA-Rios." The
detainer, dated May 28, 2004, advised North Carolina offi-
cials that an "[i]nvestigation ha[d] been initiated to determine
whether this person is subject to removal from the United
States." S.A. 1.2
Upon his release from state prison in the Western District
1
A detainer is a mechanism by which federal immigration authorities
may request that another law enforcement agency temporarily detain an
alien "in order to permit assumption of custody by the Department [of
Homeland Security]." See 8 C.F.R. § 287.7(d).
2
References to "S.A." are to the Supplemental Appendix submitted by
the parties. References to "J.A." are to the Joint Appendix submitted by
the parties.
4 UNITED STATES v. URIBE-RIOS
of North Carolina on September 21, 2006, Appellant was
immediately taken into custody by the United States Bureau
of Immigration and Customs Enforcement ("ICE"). In an
interview with ICE agents conducted that same day, Appel-
lant stated that his real name was Fausto Miguel Uribe-Rios,
he had previously used the alias "Francisco Rios Medina," he
had previously been deported, and he had not applied to the
Attorney General for permission to reenter the United States.
Appellant reiterated these statements in a sworn affidavit. J.A.
52-53. ICE agents processed Appellant’s fingerprints at that
time, discovering deportation orders and warrants under
Appellant’s true name, Fausto Miguel Uribe-Rios, as well as
under the aliases "Francisco Uribe-Rios" and "Efrain Gomez-
Gonzalez." It is undisputed that the federal government did
not have actual knowledge of Appellant’s presence in this
country under his correct name until this time.
Appellant was indicted in the Western District of North
Carolina on September 29, 2006, under 8 U.S.C. § 1326 for
being "found in" the United States without the permission of
the Attorney General after having previously been deported
for an aggravated felony.3 Section 1326 provides in pertinent
part:
(a) In general . . . any alien who—
(1) has been . . . removed or has departed
the United States . . . and thereafter
(2) enters, attempts to enter, or is at any
time found in, the United States, unless . . .
the Attorney General has expressly con-
sented . . .
3
The indictment refers specifically to "Sections 1326(a) and (b)(2)."
J.A. 6.
UNITED STATES v. URIBE-RIOS 5
shall be fined under Title 18, or imprisoned not more
than 2 years, or both.
(b) Criminal penalties for reentry of certain removed
aliens—Notwithstanding subsection (a) . . .
(2) [Any alien] whose removal was subse-
quent to a conviction for commission of an
aggravated felony, such alien shall be fined
under such Title, imprisoned not more than
20 years, or both.
8 U.S.C. § 1326.
In the district court, Appellant moved to dismiss the indict-
ment, arguing that the applicable statute of limitations had
run, that venue was improper, and that he was prejudiced by
pre-indictment delay. The district court rejected Appellant’s
arguments and denied the motions to dismiss the indictment.
United States v. Uribo-Rios, No. 3:06cr395, 2006 WL
3751323, at *4 (W.D.N.C. Dec. 19, 2006).4 Appellant pleaded
guilty without entering a plea agreement and was sentenced
to 70 months imprisonment with three years of supervised
release.
Appellant timely appealed his conviction, raising the same
statute of limitations, venue, and pre-indictment delay claims
raised in the district court below. He also raised a new claim
that his sentencing violated his rights under the Fifth and
Sixth Amendments because he was sentenced based on past
convictions that were neither admitted by him nor proven to
a jury beyond a reasonable doubt.
4
The different spelling of "Uribe-Rios" in the caption appears to be a
clerical error in the slip opinion below.
6 UNITED STATES v. URIBE-RIOS
II.
We have jurisdiction under 28 U.S.C. § 1291. Appellant’s
arguments turn on questions of law, which we review de
novo. United States v. Woolfolk, 399 F.3d 590, 594 (4th Cir.
2005). We address Appellant’s arguments in turn.
III.
The parties do not dispute that the applicable statute of lim-
itations is five years.5 Appellant argues that the statute of limi-
tations began running on January 26, 2001, when he "entered
the custody of the State of North Carolina." Appellant’s Br.
at 15. He contends that "[a]t that point, he had been ‘found’
by authorities as required to establish a violation of 8 U.S.C.
§ 1326." Id. He notes that at or by this date, he had given his
name as "Miguel Uribe-Rios" in state court and had testified
in that forum as to his illegal status in the United States. He
further emphasizes that "he was in the exclusive control of
government authorities" and had been fingerprinted. Id. at 15,
18.
To support his statute of limitations argument, Appellant
relies heavily on United States v. Gomez, 38 F.3d 1031 (8th
Cir. 1994), which concerned an illegal alien who had been
deported under the alias "Rodrigo Rojas Gomez," but whose
real name was "Javier Dario Gomez." When Gomez was
deported as "Rodrigo Rojas Gomez," the INS file under that
name contained a social security number and fingerprints.
Gomez reentered the United States surreptitiously and pre-
sented himself at an INS Legalization Office to apply for tem-
porary resident status. In the application, he provided his real
name, his fingerprints, and the false social security number
connected with the alias "Rodrigo Rojas Gomez." The INS
5
See 18 U.S.C. § 3282(a) (catch-all limitations period for non-capital
offenses); see also United States v. Rivera-Ventura, 72 F.3d 277, 280 (2d
Cir. 1995) (applying 18 U.S.C. § 3282 to 8 U.S.C. § 1326).
UNITED STATES v. URIBE-RIOS 7
granted him temporary resident alien status, which was later
adjusted to permanent resident alien status. When Gomez was
arrested several years later in connection with a jewelry theft,
an FBI and INS fingerprint analysis revealed that Javier Dario
Gomez and Rodrigo Rojas Gomez were the same person. Five
years and four days after Gomez had initially presented him-
self to the INS Legalization Office, the INS filed an indict-
ment charging Gomez with violating 8 U.S.C. § 1326. Under
these circumstances, the Gomez court found that the five-year
limitations period had expired by the time the indictment was
filed, noting that federal immigration authorities had "pos-
sesse[d] all the necessary information [to determine Gomez’s
identity and illegal status], but negligently fail[ed] to act upon
it for over five years." Id. at 1037. The Gomez court held that
"the statute of limitations for a ‘found in’ violation should . . .
begin running when immigration authorities could have,
through the exercise of diligence typical of law enforcement
authorities, discovered the violation." Id. at 1037.
In addition to Gomez, Appellant cites cases from the Sec-
ond, Fifth, and Tenth Circuits for the proposition that "for an
alien to be ‘found,’ the government must have ‘knowledge of
the illegality of his presence, through the exercise of diligence
typical of law enforcement authorities.’" United States v.
Bencomo-Castillo, 176 F.3d 1300, 1303 (10th Cir. 1999)
(quoting United States v. Santana-Castellano, 74 F.3d 593,
598 (5th Cir. 1996); citing Rivera-Ventura, 72 F.3d at
282-82). Appellant argues that in his case, "had governmental
authorities used reasonable diligence, they would have
‘found’" him at the time he was incarcerated in state prison.
Appellant’s Br. at 18. He points out that "North Carolina cor-
rectional authorities had a system in place for notifying ICE
officials of inmates believed to be in the country illegally." Id.
He also emphasizes that the North Carolina Department of
Corrections maintained a website that provided the name of
"Francisco Rios Medina," a state identification number, and
an FBI identification number. These state and FBI identifica-
tion numbers appear on the FBI criminal history report for
8 UNITED STATES v. URIBE-RIOS
"Fausto Uribe-Rios," which also includes a North Carolina
conviction under the name "Francisco Rios Medina." J.A. 62-
72. Appellant argues that "[i]mmigration authorities had
access to [his] FBI and state identification numbers . . . and
they could have run them through the FBI database at any
time," which would have revealed Appellant’s name, his alias
of "Francisco Rios Medina," and his illegal immigration sta-
tus. Appellant’s Br. at 19. Appellant contends that ICE’s fail-
ure to do so "does not demonstrate the level of diligence
typical of law enforcement authorities" and that the limita-
tions period began running on January 26, 2001, the date of
his state incarceration. Id.
A.
Appellant’s argument that the limitations period began run-
ning on January 26, 2001 is unpersuasive for several reasons.
At the outset, we note that Appellant cites no evidence in the
record showing that on January 26, 2001, federal immigration
authorities were aware of his identity and illegal presence in
the United States. As Appellant correctly points out, courts
interpreting section 1326 have held that "a previously
deported alien is ‘found in’ the United States when his physi-
cal presence is discovered and noted by the immigration
authorities." United States v. Reyes-Nava, 169 F.3d 278, 280
(5th Cir. 1999) (quotations and citations omitted); see also
United States v. Almendarez, 1 F. App’x 234, 234 (4th Cir.
2001) (unpublished) ("[O]ther courts have held that an alien
is ‘found’ when immigration authorities discover his presence
in the United States, determine that his presence is illegal, and
ascertain that he has reentered after a previous deportation."
(citations omitted)). Appellant provides no evidence showing
that on January 26, 2001, federal immigration authorities
were aware of his actual identity, his presence in the United
States, or his illegal immigration status. He can only show
that state authorities were aware of his presence—under an
alias—and he points to no cases in which courts have held
that an alien is "found in" the United States in violation of
UNITED STATES v. URIBE-RIOS 9
section 1326 when state, rather than federal officials, take the
alien into custody. In fact, courts have uniformly declined to
find that state officials’ knowledge of an alien’s illegal pres-
ence in the United States may be imputed to federal immigra-
tion authorities to trigger the limitations period. See, e.g.,
United States v. Clarke, 312 F.3d 1343, 1347 (11th Cir. 2002)
(collecting cases and holding that "[t]o the extent that [the
alien] contends that the knowledge of Florida police can be
imputed to the INS and therefore is sufficient to start the run-
ning of the five-year statute of limitations, we reject this argu-
ment").
Contrary to Appellant’s argument that when he was incar-
cerated by state officials he was in the custody of "govern-
mental" authorities and therefore "found" under section 1326,
courts have routinely held that an alien is "found in" the
United States only when federal, not state, immigration offi-
cials become aware of the alien’s presence and illegal status.
In United States v. Santana-Castellano, 74 F.3d 593 (5th Cir.
1996), an alien reentered the United States illegally and was
eventually arrested and convicted in Texas state court for the
offense of injury to a child. While serving his five-year state
sentence, an INS agent interviewed him. The Fifth Circuit
held that the alien was "found in" the United States on the
date the INS agent interviewed him, and not when the alien
was arrested and convicted by state law enforcement authori-
ties. "[I]n instances where the deported alien surreptitiously
enters the country, and is later discovered by the INS, the stat-
ute of limitations does not begin to run until his presence as
well as the illegal status of that presence is discovered by the
INS." 74 F.3d at 598 (citations omitted) (emphasis added).
Similarly, in United States v. Mercedes, 287 F.3d 47 (2d Cir.
2002), an alien illegally reentered the United States in 1991
and was arrested by the New York City Police Department on
a state homicide charge in 1993. While he was awaiting his
sentencing, the INS first learned of his presence in the United
States in 1996 when they interviewed him at a state correc-
tional facility. The Second Circuit rejected the alien’s conten-
10 UNITED STATES v. URIBE-RIOS
tion that the INS could have discovered his illegal presence in
the country after his 1993 arrest, when state authorities took
his fingerprints and generated a rap sheet on him. The Mer-
cedes court noted that "if any authority was on notice of [the
alien’s] illegal presence in the United States in 1993, it was
the New York State Department of Corrections, not the INS."
Id. at 55. The court refused "to adopt a rule that would make
the INS responsible for any immigration-related information
discovered in state investigations of the hundreds of thou-
sands of prisoners in state custody at any given time." Id.
Because Appellant points to no evidence showing that federal
immigration authorities were aware of his identity and illegal
presence in the United States when he was incarcerated in
state prison on January 26, 2001, we reject his argument that
on that date "he had been ‘found’ by authorities as required
to establish a violation of 8 U.S.C. § 1326." Appellant’s Br.
at 15.
B.
Appellant also relies on Gomez and a theory of constructive
knowledge to support his statute of limitations argument. His
arguments are unavailing in this case for several reasons.
1.
First, we note that the plain text of section 1326 does not
support a theory of constructive knowledge. An alien violates
8 U.S.C. § 1326 when the alien "is at any time found in[ ] the
United States"—not when the alien is "found or should have
been found" in the country, as Appellant argues. The Seventh
Circuit has already rejected a theory of constructive knowl-
edge under section 1326, finding that "when the government
‘should have discovered’ a deportee’s illegal presence in the
United States is irrelevant to when the statute of limitations
begins to run." United States v. Gordon, 513 F.3d 659, 664-65
(7th Cir. 2008) (citations omitted). The Gordon court rea-
soned that "to be ‘found in’ the United States . . . means to
UNITED STATES v. URIBE-RIOS 11
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." Id. at 664-65. Because the alien "remains illegally
‘present in’ the United States," the Gordon court interpreted
the "found in" violation of section 1326 to be a continuing
offense, such that "[t]he limitations clock does not run during
this period." Id. at 665 (citation and quotation marks omitted).
"Because the ‘found in’ version of § 1326(a)(2) is a continu-
ing offense, the date on which the immigration agency
‘should have discovered’ the alien is simply irrelevant." Id.
(citation and quotation marks omitted). Like the Gordon
court, we are reluctant to read a gloss onto section 1326 that
the text of the statute does not itself support.
2.
Second, even if section 1326 does countenance a theory of
constructive knowledge, we conclude, consistently with other
circuit courts, that such a theory does not benefit Appellant.
Notably, Appellant cites no case in which a court has found
that federal immigration authorities had constructive knowl-
edge of an alien’s illegal presence in the United States when
the alien concealed his identity through the use of an alias.
Although the theory of constructive knowledge imposes upon
federal immigration officials a duty to exercise "diligence typ-
ical of law enforcement authorities" in ascertaining an alien’s
immigration status, see United States v. Bencomo-Castillo,
176 F.3d 1300 (10th Cir. 1999), courts have declined to apply
such a theory to find that federal immigration officials failed
to act with the requisite diligence when the alien has affirma-
tively concealed his true identity with an alias.
In Bencomo-Castillo, for example, the Tenth Circuit
acknowledged the availability of a constructive knowledge
theory under section 1326, but nevertheless affirmed the dis-
trict court’s determination that federal immigration authorities
had "found" an alien only when "an INS agent identified him
12 UNITED STATES v. URIBE-RIOS
as a previously deported alien," and not at an earlier point
when state police arrested him, took his fingerprints, and sub-
mitted them to the FBI. 176 F.3d at 1303. The court noted that
federal immigration officials "cannot discover information
about an alien giving a false name unless they check multiple
computer indexes," and that "if the alien uses a new alias, the
[indexes] will not yield any information about him." Id. at
1304. Under these circumstances, the court refused to find
that federal immigration officials had constructive knowledge
of the alien’s illegal presence in the United States when state
officials submitted his fingerprints to the FBI. See id. at 1304
(declining to impose on immigration officials a "legal duty
under § 1326 to conduct a more exhaustive investigation of
[an alien’s] criminal history" when the alien has used an alias
to conceal his identity). Likewise, in United States v. Mer-
cedes, the Second Circuit refused to apply a constructive
knowledge theory to find that federal immigration officials
had constructively found an alien when the alien was arrested
by state law enforcement officials, three years before an
immigration agent interviewed him at a state correctional
facility and actually ascertained his illegal status. 287 F.3d at
55. The Mercedes court emphasized that the alien had given
a false name when he was arrested and that the rap sheet that
state law enforcement officials generated upon his arrest con-
tained at least 11 other aliases. The court found it "hardly
unreasonable to expect that the ‘rap’ sheet’s listing of multi-
ple false names, as well as different birthdates and places of
birth, would delay INS officials" in ascertaining the alien’s
illegal status in the United States. Id. In addition, the court
noted that "it is difficult not to find [the alien’s] claim regard-
ing the delay disingenuous when he was the one who
attempted to deceive law enforcement officials by concealing
his true identity." Id. The First Circuit echoed this observation
in United States v. DeLeon, 444 F.3d 41 (1st Cir. 2006):
[F]or statute of limitations purposes in § 1326 prose-
cutions, there can be no finding of lack of diligence
where it is deception by the alien as to his identity
UNITED STATES v. URIBE-RIOS 13
that has caused the government not to have knowl-
edge of his presence. To hold otherwise would be to
reward deceit by the alien and to encourage the with-
holding of information, and so the corruption of the
deportation process.
Id. at 52. Like our sister circuits, we decline to employ a the-
ory of constructive knowledge to find that federal immigra-
tion officials in this case failed to act with "diligence typical
of law enforcement authorities" when Appellant concealed his
identity with an alias.
3.
Moreover, Appellant cites no case in which a court has
found that federal immigration authorities had constructive
knowledge of an alien’s illegal presence in the United States
when the alien was in the custody of state, rather than federal,
law enforcement officials. As noted above, courts have uni-
formly declined to find that state officials’ knowledge of an
alien’s illegal presence in the United States may be imputed
to federal immigration authorities for purposes of determining
when the limitations period begins to run. Although Appellant
relies heavily on Gomez to support his constructive knowl-
edge argument, this reliance is misplaced. In Gomez, the alien
presented himself to federal immigration authorities and pro-
vided his real name and fingerprints. As the Gomez court
noted, "[b]ecause the INS had in its possession Gomez’s fin-
gerprints [under both his alias and his real name], and had
access to the FBI facilities for fingerprint comparison, it pos-
sessed both the information and the means necessary to deter-
mine Gomez’s status as a deported alien." 38 F.3d at 1037. In
this case, however, although both North Carolina and federal
authorities had Appellant’s fingerprints, the two sets of fin-
gerprints were associated with different aliases. Appellant
14 UNITED STATES v. URIBE-RIOS
stresses that he testified in state court as to his illegal immi-
gration status, but even then he failed to give his full real name.6
There is no evidence in the record to show that, as in
Gomez, federal immigration authorities had "both the infor-
mation and the means necessary" to ascertain Appellant’s ille-
gal presence in the United States. 38 F.3d at 1037 Although
Appellant asserts that "North Carolina correctional authorities
had a system in place for notifying ICE officials of inmates
believed to be in the country illegally," Appellant’s Br. at 18,
the record does not show that North Carolina law enforcement
actually followed such practice in this case, and the district
court found that such notification of ICE officials had not in
fact occurred. Appellant also emphasizes that the North Caro-
lina Department of Corrections maintained a website that pro-
vided the name of "Francisco Rios Medina," as well as state
and FBI identification numbers, which federal immigration
officials could have cross-checked against the FBI criminal
history report for "Fausto Uribe-Rios." Appellant points out
that the FBI report for "Fausto Uribe-Rios" contained the
same state and FBI identification numbers that were linked to
"Francisco Rios Medina" in the North Carolina on-line data-
base. These assertions do not help Appellant, however,
because both the North Carolina on-line profile for "Francisco
Rios Medina" and the FBI report for "Fausto Uribe-Rios" bear
dates from 2006. Even if federal immigration officials were
able to determine that these two names referred to the same
individual, there is no evidence in the record to show that the
information contained in either document was available on
January 26, 2001, the date Appellant was incarcerated in state
6
Notably, the court transcript refers to both "Francisco Medina [Miguel
Uribe-Rios]" and "Miguel Uribe Rios/a.k.a. Francisco Medina." J.A.
135G, 135I. Although Appellant asserts that he had "given his correct
name of Miguel Uribe-Rios in open court and had testified under oath" as
to his illegal immigration status and deportability, Appellant’s Br. at 15,
the record shows that the prosecution addressed him as "Mr. Medina," J.A.
135I.
UNITED STATES v. URIBE-RIOS 15
prison and when Appellant contends the limitations period
began to run.
Appellant has failed to show evidence of facts that would
support a finding of constructive knowledge as articulated by
our sister circuits. Regardless of whether section 1326 counte-
nances a constructive knowledge theory, such a theory is
unavailable to Appellant because of his own malfeasance in
using an alias and because fundamental principles of dual
sovereignty do not allow us to impute the knowledge of state
officials to federal officials. Indeed, Appellant urges us to
adopt a theory of constructive knowledge unsupported by
either the statutory text or case law. We decline to find a lack
of diligence "where it is deception by the alien as to his iden-
tity that has caused the government not to have knowledge of
his presence." DeLeon, 444 F.3d at 52. Likewise, we decline
to adopt a rule that would make federal immigration authori-
ties "responsible for any immigration-related information dis-
covered in state investigations of the hundreds of thousands
of prisoners in state custody at any given time." Mercedes,
287 F.3d at 55. We decline to adopt a theory of constructive
knowledge on these facts and reject Appellant’s argument that
ICE’s failure to monitor and cross-check state law enforce-
ment records against federal law enforcement records to dis-
cover his true identity amounts to a failure to exercise
diligence typical of law enforcement authorities.
Because Appellant has not shown that federal immigration
officials discovered his illegal presence in the United States
and ascertained that he had reentered after a previous deporta-
tion on January 26, 2001, his statute of limitations argument
fails.
IV.
Appellant next argues that venue was improper in the
Western District of North Carolina because he was "found" in
the Eastern District of North Carolina before his involuntary
16 UNITED STATES v. URIBE-RIOS
transfer to the Western District of North Carolina in Decem-
ber 2004. Title 8 U.S.C. § 1329 states that a prosecution for
a violation of section 1326 "may be instituted at any place in
the United States at which the violation may occur." Courts
have interpreted this provision as placing venue for a section
1326 offense in any district where an alien is "found." See
United States v. Almendarez, 1 F. App’x 234, 235 (4th Cir.
2001) (unpublished) (citing United States v. Herrera-
Ordones, 190 F.3d 504, 511 (7th Cir. 1999)); see also United
States v. Hernandez, 189 F.3d 785 (9th Cir. 1999).
Appellant argues that he "should have been ‘found,’ at the
latest, when federal immigration authorities placed a detainer
on him" on June 7, 2004—before state officials transferred
him to another state institutional facility in the Western Dis-
trict of North Carolina. Appellant’s Br. at 22. He cites United
States v. Hernandez-Hernandez, 291 F. Supp. 2d 490 (W.D.
Tex. 2003), for the proposition that "if a defendant has been
‘found’ by immigration authorities in one district, he cannot
then be transferred to another district only to be ‘appre-
hended’ by federal authorities in the other district." Appel-
lant’s Br. at 21. The Hernandez-Hernandez court held that
federal immigration authorities had found the defendant when
they placed a detainer on him. 291 F. Supp. 2d at 496.
Hernandez-Hernandez is inapposite to this case. There is
no indication that the alien in that case concealed his identity
from state and federal law enforcement authorities by using
an alias. Nor is there any indication that immigration authori-
ties were not aware of the alien’s identity and immigration
status when the detainer was issued. In contrast, the record
here shows, at most, that federal immigration authorities had
requested a detainer on someone named "Francisco
MEDINA-Rios" and that an "[i]nvestigation ha[d] been initi-
ated to determine whether this person [was] subject to
removal from the United States." S.A. 1. Appellant points to
nothing in the record to show that when they placed a detainer
on Francisco Medina-Rios, federal immigration authorities
UNITED STATES v. URIBE-RIOS 17
had actual knowledge of either his real identity or immigra-
tion status, let alone both.
Although Appellant makes much of the fact that he was
involuntarily present in the Western District when he was
found, this argument does not alter our venue analysis. As
noted above, section 1329 places venue for a section 1326
violation in any district where the alien is found, with no
regard as to whether the alien is in that district voluntarily.
The Seventh Circuit has expressed a similar view in Herrera-
Ordones, holding that "whether an alien was in a particular
location by choice has no relevance in venue determinations"
because "[v]enue is proper anywhere in the United States,
wherever the previously deported and reentered alien is
‘found.’" 190 F.3d at 511. Cf. United States v. Ortiz-Villegas,
49 F.3d 1435, 1437-38 (9th Cir. 1995) (finding that "[i]ntent
to be in the United States at the moment [an alien] is located
is not necessary" because that alien already "has the intent
required to support a conviction for being ‘found in’ the
United States" by voluntarily reentering the country). Because
federal immigration authorities found Appellant under section
1326 in the Western District of North Carolina, venue was
proper in that district.
V.
Appellant also argues that the five years between his state
incarceration in 2001 and his federal immigration prosecution
in 2006 amounted to an unconstitutionally prejudicial pre-
indictment delay. He argues that the delay violated his Fifth
Amendment right to due process because it cost him the
chance to serve part of his federal and state sentence concur-
rently.
In United States v. Marion, 404 U.S. 307 (1971), the
Supreme Court explained that the Fifth Amendment "would
require dismissal of the indictment if it were shown at trial
that the pre-indictment delay . . . caused substantial prejudice
18 UNITED STATES v. URIBE-RIOS
to appellees’ rights to a fair trial and that the delay was an
intentional device to gain tactical advantage over the
accused." 404 U.S. at 324. We conduct a two-pronged inquiry
to evaluate a defendant’s claim that pre-indictment delay vio-
lated his right to due process. United States v. Automated
Med. Labs., Inc., 770 F.2d 399, 403 (4th Cir. 1985). First, we
ask whether the defendant has satisfied his burden of proving
"actual prejudice." Id. Second, if that threshold requirement is
met, we consider the government’s reasons for the delay,
"balancing the prejudice to the defendant with the Govern-
ment’s justification for delay." Id. at 404 (citation omitted).
The "basic inquiry then becomes whether the Government’s
action in prosecuting after substantial delay violates ‘funda-
mental conceptions of justice’ or ‘the community’s sense of
fair play and decency.’" Id. (quoting United States v. Lovasco,
431 U.S. 783, 790 (1977). If delay results from a protracted
investigation that was nevertheless conducted in good faith,
the Supreme Court has held that "to prosecute a defendant fol-
lowing investigative delay does not deprive him of due pro-
cess, even if his defense might have been somewhat
prejudiced by the lapse of time." Lovasco, 431 U.S. at 796.
Appellant’s Fifth Amendment due process argument is
unavailing because he has failed to establish that pre-
indictment delay resulted in the unavailability of any records,
witnesses, or other evidence.7 Instead, his sole argument on
appeal is that pre-indictment delay cost him the chance to
serve his federal and state sentences concurrently.
We reject this argument for several reasons. First, because
there is no right to serve state and federal sentences concur-
rently, an appellant’s lost chance of doing so cannot be used
to establish prejudice for the purposes of challenging pre-
7
The district court found, and Appellant has not contested, that Appel-
lant admitted he was "unsure" whether immigration records had been lost
and could not identify any witnesses who were no longer available to tes-
tify.
UNITED STATES v. URIBE-RIOS 19
indictment delay. United States v. Ferguson, No. 94-5326,
1995 WL 107358, at *3 (4th Cir. Mar. 15, 1995) (unpub-
lished) (citing United States v. Fuzer, 18 F.3d 517, 520 (7th
Cir. 1994) (focusing on the speculative nature of a potential
award of concurrent sentences)). Apart from his inability to
serve his sentences concurrently, Appellant cites no other
source or cause of actual prejudice.
Second, we note that the opportunity to serve concurrent
sentences does not implicate Appellant’s Fifth Amendment
right to a fair trial. See United States v. Ricketson, 498 F.2d
367, 370-71 (7th Cir. 1974); United States v. Fromal, 725 F.
Supp. 856, 858 (E.D. Pa. 1989).8 Appellant has not shown that
the government purposely caused delay "to gain tactical
advantage over" him at trial. Marion, 404 U.S. at 324.
Because Appellant failed to meet his burden of proving that
pre-indictment delay actually prejudiced his right to a fair
trial, his Fifth Amendment claim fails.
VI.
Finally, Appellant challenges his sentence, arguing that the
district court’s consideration of prior convictions, evidence of
which was neither alleged in the indictment nor proven to a
jury beyond a reasonable doubt, violated his rights under the
Fifth and Sixth Amendments. See Apprendi v. New Jersey,
530 U.S. 466, 490 (2000) ("Other than the fact of a prior con-
8
Smith v. Hooey, 393 U.S. 374 (1969), is not to the contrary. Although
the Smith Court based a finding of prejudicial delay in part on the lost pos-
sibility of receiving partially concurrent sentences, the Court was applying
the Sixth Amendment right to a speedy trial, not the Fifth Amendment
right to a fair trial. See id. at 378. The Sixth Amendment right to a speedy
trial right does not attach until indictment or arrest. Jones v. Angelone, 94
F.3d 900, 906 n.6 (4th Cir. 1996). Although Appellant has cited authority
interpreting the Speedy Trial Act, Appellant’s Br. at 22, we do not under-
stand Appellant to be challenging the three-month time period between his
indictment and conviction.
20 UNITED STATES v. URIBE-RIOS
viction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.").
Appellant concedes that his claim falls within Apprendi’s
express exception regarding evidence of prior convictions and
acknowledges our recent reiteration that "the ‘fact of a prior
conviction’ remains a valid enhancement even when not
found by the jury." United States v. Thompson, 421 F.3d 278,
282 (4th Cir. 2005). But even without a prior convictions
exception, Appellant’s Apprendi claim would fail because
Appellant was sentenced below the statutory maximum for
the offense to which he pleaded guilty.9 To the extent that
Appellant’s prior convictions factored into his sentence, they
did not increase his sentence over the statutory maximum.
Apprendi is inapposite, and there was no constitutional error
in the district court’s sentencing.
VII.
For the foregoing reasons, the opinion below is
AFFIRMED.
9
Appellant pleaded guilty to illegal reentry under 8 U.S.C. § 1326(a)
and (b)(2). The statutory maximum term of imprisonment for that offense
is 20 years. 8 U.S.C. § 1326(b)(2). Appellant was sentenced to 70 months
imprisonment.