F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 13 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 98-2126
vs.
ARTURO BENCOMO-CASTILLO,
also known as Rigoberto Castillo-
Marquez, also known as Juan Castello-
Sotelo,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CR-97-397-LH)
Jerry A. Walz, Walz & Associates, Albuquerque, New Mexico, for the Defendant-
Appellant.
Laura Fashing, Special Assistant United States Attorney (John J. Kelly, United
States Attorney, with her on the brief), Office of the United States Attorney,
Albuquerque, New Mexico, for the Plaintiff-Appellee.
Before KELLY, McKAY, and HENRY, Circuit Judges.
KELLY, Circuit Judge.
Defendant-Appellant Arturo Bencomo-Castillo pled guilty to an indictment
charging that he entered, attempted to enter, or was at any time found in the
United States without the Attorney General’s consent after having been deported,
in violation of 8 U.S.C. § 1326. Mr. Bencomo-Castillo had previously been
convicted of theft warranting at least one year’s imprisonment – an offense
considered an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(G), as of
September 30, 1996. In his earlier motion to quash the indictment, which was
denied, he challenged the government’s ability to charge him with being an
aggravated felon under § 1326(b)(2), claiming he was “found” in the United
States before this date. Although he had an offense level of twenty-one with a
criminal history category V, the parties entered a plea agreement, providing that
the offense level would be seventeen and Mr. Bencomo-Castillo could argue, at
sentencing, that he had a prior felony conviction under § 1326(b)(1), rather than
an aggravated felony conviction under §1326(b)(2). The plea agreement also
preserved this issue for appeal. After holding an evidentiary hearing on
applicability of § 1326(b)(2), the court determined Mr. Bencomo-Castillo’s
sentence with reference to USSG § 2L1.2(b)(1)(A), which provides a sixteen-
level enhancement if the deportation occurred subsequent to an aggravated felony
conviction as defined by § 1101(a)(43)(G). He was sentenced to fifty-two
months’ imprisonment and three years’ supervised release.
According to Mr. Bencomo-Castillo, the court incorrectly construed §§
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1326(a)(2) & (b)(2) in calculating the enhancement because he was arrested in
Albuquerque, New Mexico, on March 23, 1996 – after his deportation but before
the amended definition of an aggravated felony in § 1101(a)(43)(G) took effect.
He contends that the INS had constructive knowledge of his presence in the
United States that spring; thus, he was “found” before September 30, 1996 and his
prior theft should not have been deemed an aggravated felony for sentencing
purposes. We exercise jurisdiction under 28 U.S.C. §§ 1291 and 18 U.S.C. §
3742(a) and affirm.
Background
The parties agree that Mr. Bencomo-Castillo was deported on November
30, 1995, after being convicted in state court of unlawfully taking a motor
vehicle, for which he received an eighteen-month sentence. According to the
undisputed facts, he reentered the United States and was arrested in Albuquerque
on March 23, 1996. Mr. Bencomo-Castillo gave the police an alias, “Arturo
Marquez-Castillo” – one of more than thirty false names he used during his
criminal activities. See 4 R. at 63. He spent that Saturday night in the Bernalillo
County Detention Center and was released the following day. Because the INS
does not perform jail checks on weekends, his deportation status was not
discovered. However, the Albuquerque Police Department took his fingerprints
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and, on May 15, 1996, submitted them to the FBI. The fingerprints were not
processed until March 11, 1997.
Defense counsel asserts that an earlier arrest on February 29, 1996, was
discovered after the district court ruled on Mr. Bencomo-Castillo’s motion to
quash the indictment. The parties do not agree on whether the police took his
fingerprints during the February 1996 arrest. Yet, they do agree that Mr.
Becomo-Castillo was arrested again on February 27, 1997, and that on June 5,
1997, while he was still in custody, an INS agent identified him as a previously
deported alien.
Discussion
If the district court’s application of the sentencing guidelines involves a
question of law, we review de novo. See United States v. Tagore, 158 F.3d 1124,
1127 (10th Cir. 1998). We review its factual findings for clear error. See id.
This case presents an issue of first impression in the Tenth Circuit: whether an
alien arrested under an alias and not discovered to be a prior deportee has been
“found” within the meaning of § 1326. Section 1326 applies to any previously
deported alien who “enters, attempts to enter, or is at any time found in, the
United States” without the Attorney General’s consent. § 1326(a)(2) (emphasis
added). Section 1326(b)(2) authorizes not more than twenty years’ imprisonment
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for an alien described in § 1326(a) “whose removal was subsequent to a
conviction for commission of an aggravated felony.” The meaning of the word
“found” in § 1326 thus lies at the heart of this case.
In United States v. Meraz-Valeta, 26 F.3d 992, 997 (10th Cir. 1994), we
adopted the Second Circuit’s view that the “found in” language of § 1326(a) is
synonymous with “discovered in.” Id. (citing United States v. Whittaker, 999
F.2d 38, 42 (2d Cir. 1993)); see also United States v. Gomez, 38 F.3d 1031, 1036
(8th Cir. 1994) (noting that this is the prevailing interpretation). In Whittaker, the
Second Circuit stated that an alien who gave an alias upon reentering the United
States at an official checkpoint had not been “found” because:
His documentation, although containing his photograph, used a
fictitious name. There was, thus, no way the INS could have
identified him as a previously deported alien at the time of his
reentry. That is the precise situation Congress sought to cover when,
in 1972, it amended the Statute to cover aliens who were found in the
United States following their illegal entry.
Whittaker, 999 F.2d at 42. Other circuits have agreed 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. Santana-Castellano, 74 F.3d 593, 598 (5th Cir. 1996); see United States
v. Rivera-Ventura, 72 F.3d 277, 281-82 (2d Cir. 1995).
Although the government lacked actual knowledge that Mr. Bencomo-
Castillo was a previously deported alien before June 5, 1997, he contends that the
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INS had constructive knowledge in the spring of 1996. First, he asserts, it was
unreasonable for the INS not to perform weekend jail checks. Second, he charges
the FBI with negligence in failing to process his fingerprints for almost a year.
Neither the plain language of the statute nor the relevant case law suggests
that the “found in” element of § 1326(a) requires the government to exercise
more than reasonable diligence in screening for previously deported aliens. See
Santana-Castellano, 74 F.3d at 598. Mr. Bencomo-Castillo cites Gomez for the
proposition that the INS and the FBI negligently failed to discover his status from
his fingerprints; yet, Gomez does not govern the outcome of his case. In
attempting to determine whether a § 1326 indictment was brought within the
applicable statute of limitations, the Gomez court suggested but did not hold that
the government negligently failed to find an alien. See Gomez, 38 F.3d at 1038.
Even if the Eighth Circuit had established a threshold for reasonable diligence in
Gomez, we would not be bound by it. See Abeyta v. Chama Valley Indep. Sch.
Dist., 77 F.3d 1253, 1257 (10th Cir. 1996). Many of the other cases that Mr.
Bencomo-Castillo cites deal with the irrelevant issue of whether an alien must
evade an official checkpoint in order to be “found,” rather than merely entering
the United States. See, e.g., United States v. DiSantillo, 615 F.2d 128, 137 (3d
Cir. 1980).
In the instant case, the government had neither constructive nor actual
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knowledge of Mr. Bencomo-Castillo’s prior deportation until after September 30,
1996. INS agents only perform jail checks Monday through Friday and are not
required to research the criminal history of persons who have been released from
custody. See 4 R. at 32. Even if an INS agent had performed a weekend jail
check on or around March 23, 1996, he probably would not have discovered Mr.
Bencomo-Castillo’s status because Mr. Bencomo-Castillo used an alias. See id. at
11. Agents cannot discover information about an alien giving a false name unless
they check multiple computer indexes, including the Deportable Alien Control
System (“DACS”) and the National Crime Information Center (“NCIC”). See id.
at 11, 23, 24. These systems are not checked during a routine screening unless
the officer recognizes an alien as a prior deportee. See id. at 12, 20. Moreover,
if the alien uses a new alias, the NCIC will not yield any information about him.
See id. at 49. Based on such evidence, the district court did not clearly err in
finding that the INS did not identify Mr. Bencomo-Castillo as a deported alien
before June 5, 1997. We also hold that INS agents had no legal duty under §
1326 to conduct a more exhaustive investigation of his criminal history.
Finally, Mr. Bencomo-Castillo charges the government with negligence due
to its delay in processing his fingerprints. If the FBI had checked the prints in the
usual forty-five to ninety days, see id. at 30, Mr. Bencomo-Castillo asserts, he
would have been “found” before September 30, 1996. Instead, it took almost a
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year to process them. However, even if the FBI had contacted the INS in ninety
days, Mr. Bencomo-Castillo still would not have been “found” because the INS
no longer knew his whereabouts. Although the government must exercise
“diligence typical of law enforcement authorities” to find prior deportees,
Santana-Castellano, 74 F.3d at 598, we decline to second-guess the FBI’s
priorities in processing suspects’ fingerprints. Accordingly, we hold that Mr.
Bencomo-Castillo was not “found” in the United States until June 1997, after the
amended definition of aggravated felony took effect, and the district court
properly enhanced his sentence.
AFFIRMED.
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