                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-5046


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ENRIQUE MARENTES VARGAS,        a/k/a   Enrique   Vargas,   a/k/a
Enrique Merentes-Vargas,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:09-cr-00086-RLW-1)


Argued:   December 10, 2010              Decided:   January 25, 2011


Before AGEE and DAVIS, Circuit Judges, and David A. FABER,
Senior United States District Judge for the Southern District of
West Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Mary Elizabeth Maguire, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Richmond, Virginia, for Appellant.     Stephen David
Schiller, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee.     ON BRIEF: Michael S. Nachmanoff,
Federal Public Defender, Alexandria, Virginia, for Appellant.
Neil H. MacBride, United States Attorney, Alexandria, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       Appellant Enrique Marentes Vargas was convicted of illegal

reentry into the United States under 8 U.S.C. § 1326, which

punishes any deported alien who, without proper authorization,

“enters, attempts to enter, or is at any time found in, the

United States.” The statute of limitations for such an offense

is   five   years.      18   U.S.C.   §   3282.     Vargas    contends    that   his

prosecution is barred by limitations. We disagree and affirm.



                                          I.

       As explained below, Vargas contends limitations began to

run in 2001 (more than five years before his 2009 indictment),

when   he   and   his    employer     filed    an   I-140    Petition    for   Alien

Worker and an Application for Alien Employment Certification.

These documents included Vargas’s true name and birth date but

failed to report his Alien Number and the fact that he had been

deported     previously.        Vargas     argues      that    with      reasonable

diligence the authorities should have discovered then that he

had reentered the United States illegally, and thus that he was,

at that time, “found in” this country by immigration authorities

within the meaning of § 1326(a)(1). The Government responds with

two arguments. First, it urges that because § 1326 criminalizes

a former deportee’s unauthorized presence in this country, i.e.,

continuing conduct, essentially, prosecution for such an offense

                                          3
can never be barred by limitations while the deportee remains in

the country, because the limitations period does not commence to

run   until    an   alien     is    arrested       by   federal      authorities.      See

United States v. Merentes-Vargas, 2009 WL 1587291, *6 (E.D.Va.

June 5, 2009) (collecting cases) (opinion below). Second, the

Government argues in the alternative that, as the district court

found, Vargas’s        I-140    form      was    deceitful     and     failed    to   give

sufficient     notice    to    the       immigration     authorities      of     Vargas’s

illegal    reentry      to     trigger       the    running       of    the     five-year

limitations period.

      We   conclude     that       the    district      court’s      finding     in   this

latter regard is not clearly erroneous; accordingly, we affirm

the judgment.

                                            A.

      Vargas is a citizen of Mexico. His true name is in dispute,

though the district court accepted his claim that his true name

is Enrique Marentes Vargas. Likewise, there exists a question as

to his birth date, which the district court found to be July 15,

1964. He illegally entered the United States sometime before

August 1995, when he was convicted in California state court for

selling marijuana. He was first arrested by federal immigration

officials on April 20, 1998 in Omaha, Nebraska.

      In connection with the 1998 arrest, federal officers: (1)

assigned      Vargas    an     Alien        Number;      (2)      obtained       Vargas’s

                                             4
fingerprints        and    his     photograph;           and     (3)       obtained       certain

personal information from                Vargas. They entered the information

into a Record of Deportable/Inadmissible Alien. This document

listed Vargas’s name as “Enrique Merentes-Vargas” (rather than

“Enrique Marentes Vargas”) and his date of birth as “July 15,

1961” (not July 15, 1964). J.A. 62. The Government contended in

the   court    below       that   Vargas       was       using      an    alias     and    giving

incorrect information, but the district court, rejecting this

contention,      found      “that       there       is    no     evidence       that      he    has

concealed his identity with an alias,” but rather that “he has

consistently used his true name.” J.A. 68. The court found the

discrepancies       in     the     Record       were      “most          likely”    due    to      a

ministerial error. J.A. 68. The Record also lists Vargas’s home

state    as   Zacatecas,         Mexico,       and   his       employer        as   R.L.       Craft

Roofing in Omaha, Nebraska.

      Vargas was removed to Mexico on May 14, 1998 after being

served    with   an    I-294      form,    which         included        his   Alien      Number,

advising him of the penalties of illegal reentry.

                                               B.

      By February 1999, Vargas had reentered the United States

without    authorization          and    was    working        as    a    roofer     for       Carey

Oakley    &   Co.     in    Sandston,       Virginia.          In    July      1999,      he    was

convicted of assault and battery, but state officials did not

notify federal officials of Vargas’s presence. On November 30,

                                                5
2001,    Carey    Oakley    &     Co.   filed       an    I-140       Petition      for   Alien

Worker on Vargas’s behalf. Vargas also completed an Application

for Alien Employment Certification, which was sent with the I-

140    petition     to    the     Immigration            and    Naturalization         Service

(INS). These documents listed Vargas’s true name and birth date,

his birthplace as Zacatecas, Mexico, and his prior employment at

R.L. Craft Co. of Omaha, Nebraska (whom he indicated he had

worked for between July 1995 and June 1998). These documents did

not ask about prior deportation or convictions, although the I-

140 petition did ask for an “A# [Alien Number] if any.” This

field was left blank despite the fact that, as just mentioned,

Vargas had been assigned an Alien Number when he was deported

after    his     1998    arrest    in    Nebraska.             J.A.    63-64.    Immigration

authorities approved Vargas’s I-140 petition in 2002.

                                              C.

        Five years later, in August 2007, Vargas filed an I-485

Application for Lawful Permanent Residency. He falsely claimed

in    that   application        that    he    had    not       been    assigned     an    Alien

Number and that he not been deported or removed from the country

previously.       The    application         was    pending       at    the     time   of   the

proceedings in the district court.

        In   February     2009,     Vargas         was    arrested       for     robbery    in

Chesterfield        County,        Virginia.             Immigration          and      Customs

Enforcement (ICE) officials were notified of the arrest, ran

                                              6
Vargas’s    fingerprints,       and   thereby      linked   him    to     his    1998

immigration records. J.A. 65. On March 17, 2009, a federal grand

jury returned a one-count indictment charging Vargas with being

found in the United States after having been previously deported

subsequent to conviction for a felony, in violation of 18 U.S.C.

§ 1326. Vargas pled not guilty and filed a motion to dismiss the

indictment on the ground that the prosecution was time-barred

for the reasons he argues here.

                                        D.

     The district court found that Vargas was not “found” in the

United States in 2001 upon the filing of the I-140 petition

because his omission of his Alien Number “was deceptive,” J.A.

68, and more importantly that this omission, coupled with the

incorrect name and birth date in the 1998 records, “prevented

immigration       authorities    from     discovering”      that        Vargas   had

illegally reentered the United States until his 2009 arrest in

Virginia. J.A. 69. Thus, the district court denied the motion to

dismiss.

     In due course, Vargas entered a conditional guilty plea,

preserving his right to appeal the issue of limitations. Vargas

brought    such    a   timely   appeal,      and   we   review    his    conviction

pursuant to 28 U.S.C. § 1291.




                                        7
                                               II.

      The application of 18 U.S.C. § 3282’s limitations period to

illegal    reentry        charges       brought      under    8   U.S.C.      §    1326     is    a

question of law, which we review de novo. See United States v.

Uribe-Rios, 558 F.3d 347, 351 (4th Cir. 2009); United States v.

McGowan, 590 F.3d 446, 456 (7th Cir. 2009)(“We review de novo

the district court's denial of a motion to dismiss based on

statute-of-limitations              grounds,         deferring         to    the      district

court's factual determinations.”).

      Title   8,      §    1326    of    the    United       States    Code       subjects       to

punishment

      any alien who— (1) has been . . . deported . . . and
      thereafter (2) enters, attempts to enter, or is at any
      time found in, the United States, unless (A) prior to
      his reembarkation at a place outside the United States
      or   his   application  for   admission  from   foreign
      contiguous   territory,   the   Attorney  General    has
      expressly consented to such alien’s reapplying for
      admission; or (B) with respect to an alien previously
      denied admission and removed, unless such alien shall
      establish that he was not required to obtain such
      advance consent under this chapter or any prior Act.

The governing statute of limitations is 18 U.S.C. § 3282, which

mandates that “[e]xcept as otherwise expressly provided by law,

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     next      after     such

offense shall have been committed.” An offense is “committed,”



                                                8
and    the    statutory       period      begins     to    run,       when      an    offense      is

“complete.” Toussie v. United Sates, 397 U.S. 112, 115 (1970).

       Seven      of    the   eight    courts       of    appeals          to   determine         the

proper       interpretation       of   §       1326’s     “found       in”      clause       as    it

relates to the five-year statute of limitations period have held

or     strongly        intimated,      by      application           of     a     “constructive

knowledge” principle, that the statutory period begins to run

when     immigration          authorities         know     of        defendant’s        physical

presence and “either know of or, with the exercise of diligence

typical of law enforcement authorities, could have discovered

the illegality of the defendant’s presence.” United States v.

Palomino Garcia, 606 F.3d 1317, 1323 (11th Cir. 2010) (internal

quotation marks omitted); accord United States v. Villarreal-

Ortiz, 553 F.3d 1326, 1329-30 (10th Cir. 2009); United States v.

Santana-Castellano, 74 F.3d 593, 598 (5th Cir. 1996); United

States       v.   Rivera-Ventura,         72    F.3d      277,       280    (2d      Cir.   1995);

United States v. Gomez, 38 F.3d 1031, 1037 (8th Cir. 1994); see

also United States v. Hernandez, 189 F.3d 785, 789-90 (9th Cir.

1999) (relying on majority of circuits’ interpretation); United

States       v.   DiSantillo,       615     F.2d     128,       132-37       (3d     Cir.     1980)

(“[T]he alien is ‘found’ when his presence is first noted by the

immigration        authorities.”).          The     Seventh      Circuit,          in   contrast,

has held, “[c]ontrary to our sister circuits . . . that when the

government        ‘should       have      discovered’            a    deportee’s            illegal

                                                9
presence in the United States is irrelevant to when the statute

of limitations begins to run . . . .” United States v. Gordon,

513 F.3d 659 (7th Cir. 2008). The Gordon court further held

that,      questions            of    constructive         knowledge       aside,        the

Government’s actual knowledge that a formerly deported alien had

illegally reentered the country would not trigger the five-year

statute of limitations, since the alien’s illegal presence in

the States would constitute a continuing violation of § 1326.

Id. at 664-65.

     In    Uribe-Rios,           we   affirmed      the    denial     of   a    motion    to

dismiss    a   §    1326        prosecution    on    the     ground   of   limitations.

Specifically, we refused the appellant’s invitation to impute

state officers’ knowledge of an alien’s presence in the United

States to federal immigration authorities, 558 F.3d at 352-53.

Furthermore, we observed that even if a constructive knowledge

theory might be deemed to apply in that case, it would not have

availed the appellant. Id. at 354-55.

     We are satisfied that in the case at bar, as the district

court     concluded,        a    constructive       knowledge       theory      would    not

benefit Vargas. The district court found that Vargas’s omission

of his Alien Number on his I-140 petition “was deceptive.” J.A.

68. More important, the court found that Vargas’s “failure to

provide    his      Alien       Number   on   the    I-140    petition     when    it    was

completed      in    2001,       combined     with    the     incorrect        identifying

                                              10
information entered onto the 1998 Record, prevented immigration

authorities     from     discovering         that    the      defendant      had     entered

after a previous deportation.” J.A. 69 (emphasis added). Thus,

the     district       court’s        findings      make       clear      that       federal

authorities     could       not   have      discovered,        with   the    exercise     of

diligence typical of law enforcement, that Vargas had reentered

the   country        illegally    at     the      time   he     submitted      the    I-140

petition more than five years prior to his indictment in this

case.

      Vargas    has     presented       no   persuasive        evidence      the     court’s

findings     were     clearly     erroneous.        He    argues      merely      that   the

similarity of information contained in the I-140 petition and

the   1998    Record     of    Deportable/Inadmissible             Alien     should      have

been enough to trigger constructive knowledge. Both documents

name R.L. Craft Co. of Omaha, Nebraska as an employer, list

Vargas’s      place    of     birth    as    Zacatecas,         Mexico,     and    contain

similar      names    and     dates    of    birth.      But    Vargas      proffered     no

evidence that would show that these overlaps would be enough to

alert a reasonably diligent immigration official to the fact

that he had been previously deported, for instance, evidence

that a typical search against all federal immigration databases

in 2001-02 would have flagged the 1998 form as a possible match

to the I-140 petition.



                                             11
       Vargas strenuously argues that he “has done nothing to hide

himself from immigration officials” and that the “omission of an

Alien Number . . . does not rise to the level of deception

contemplated by this Court in Uribe-Rios.” Br. of Appellant, at

10-11.    But    the    innocence    of     the   omission   is    irrelevant    to

determining       whether   federal       immigration   officials,     exercising

that     diligence      typical      of    law    enforcement,       should    have

discovered the illegality of Vargas’s presence.



                                          III.

       As there is no support in the record to believe that even

the most careful and capable immigration official would have

known to compare the I-140 petition to the 1998 documents, we

are    bound     to   accept   the   district      court’s   finding    that    the

authorities could not have discovered Vargas’s illegal reentry

in    2001-02.    Consequently,      the    district    court     correctly   found

that Vargas’s prosecution was not time-barred. Accordingly, the

judgment is

                                                                        AFFIRMED.




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