                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-2789
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Southern District of Iowa
Ascension Soriano-Hernandez,            *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: December 11, 2001

                                  Filed: November 26, 2002
                                   ___________

Before McMILLIAN and MURPHY, Circuit Judges, and BATTEY,1 District Judge.
                          ___________

McMILLIAN, Circuit Judge.

       Ascension Soriano-Hernandez (“Defendant”) appeals from a final judgment
entered in the United States District Court for the Southern District of Iowa2 finding
him guilty of illegal entry by a removed alien in violation of 8 U.S.C. §§ 1326(a),
(b)(2). United States v. Soriano-Hernandez, Crim. No. 00-182 (D.S.D. July 9, 2001)

      1
       The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota, sitting by designation.
      2
      The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.
(judgment). For reversal, Defendant argues that the district court erred in holding that
his guilty plea waived his statute of limitations defense. Id. (June 29, 2001) (order
denying motion to withdraw plea) (hereinafter “District Court Order”). In addition,
Defendant argues that the district court abused its discretion in denying his motion
to withdraw his guilty plea. He argues that pursuant to Fed. R. Crim. P. 32(e) he
presented a fair and just reason to withdraw his plea because his attorney failed to
inform him that he had a valid statute of limitations defense, or, in the alternative,
because he received ineffective assistance of counsel. For the reasons discussed
below, we affirm the judgment of the district court.

       Jurisdiction in the district court was proper based on 18 U.S.C. § 3231.
Jurisdiction in this Court is proper based on 28 U.S.C. § 1291. The notice of appeal
was timely filed pursuant to Fed. R. App. P. 4(b).

                                  BACKGROUND

       The facts of this case are not in dispute. Defendant is a Mexican citizen who
entered the United States without inspection prior to 1991. On October 8, 1991, the
United States Immigration and Naturalization Service (“INS”) issued a warrant for
deportation on Defendant. Defendant returned to Mexico and, sometime after
deportation but prior to March 29, 1992, reentered the United States. He was arrested
several times in 1992 and 1993 and gave a false name to the authorities each time he
was arrested. In March 1992, he was arrested by the sheriff’s office in Cerro Gordo
County, Iowa, for possession of marijuana, and he used the alias “Raul Hernandez.”
In September 1992, Defendant was arrested by the Chicago Police Department in
Chicago, Illinois, for possession of cannabis, and he used the alias “Reyes
Maldonado.” In November 1992, he was arrested by the Chicago Police Department
for criminal damage to property, and he used the same alias “Reyes Maldonado.” In
April 1993, Defendant was arrested by the Chicago police for unlawful use of a
weapon and theft of lost property, and he used the alias “Victor Montes.” In June

                                          -2-
1993, he was arrested by a county sheriff in Morris, Illinois, for possession of
marijuana, and he again used the alias “Victor Montes.”

       After each arrest, local law enforcement authorities took Defendant’s
fingerprints and sent them to the Federal Bureau of Investigations (“FBI”). Each
time, the FBI prepared an identification report on the basis of the fingerprints and sent
a copy of the report to the local authorities within sixty days. At the time of the 1992
and 1993 arrests, the INS was not linked to the FBI computer system and did not
receive copies of these reports.

       The INS first became aware of Defendant’s illegal presence in the United
States in June 2000, after he was arrested by the Iowa state patrol on June 21, 2000,
for falsifying public documents. At that time, Defendant used the alias “Ruben Solis-
Martinez.” On June 30, 2000, the INS notified Iowa state authorities that Defendant
was a deported alien who had illegally reentered the United States.

       In August 2000, Defendant was indicted by a federal grand jury and charged
with illegal reentry in violation of 8 U.S.C. §§ 1326(a), (b)(2).3 A federal public


      3
          8 U.S.C. §§ 1326(a), (b)(2) provide in relevant part:

      (a)      In general

               Subject to subsection (b) of this section, any alien who –
                      (1) has been . . . deported . . . and thereafter
                      (2) enters, attempts to enter, or is at any time found in,
                      the United States, . . .
               shall be fined under Title 18, or imprisoned not more than two
               years, or both.

      (b)      Criminal penalties for reentry of certain removed aliens


                                           -3-
defender was appointed to represent Defendant, and Defendant pleaded guilty to
illegal reentry in October 2000. In January 2001, the federal public defender filed a
motion to withdraw as counsel due to a conflict of interest. At the hearing on the
motion to withdraw, the federal public defender testified that he had not been aware
of the statute of limitations defense at the time he advised Defendant to plead guilty
and that he did not discuss such a defense with Defendant at any time. The district
court granted the motion and appointed another attorney to represent Defendant.

       On April 13, 2001, represented by new counsel, Defendant filed a motion to
withdraw his guilty plea on the basis that: (1) 8 U.S.C. § 1326 is subject to the five-
year statute of limitations in 18 U.S.C. § 32824; (2) at the time of his plea,
Defendant’s illegal reentry charge had been barred by the statute of limitations; and
(3) Defendant’s original attorney had failed to advise him of this defense. On May 4,
2001, the district court denied Defendant’s motion, finding that the Defendant failed
to present “any fair and just reason” to withdraw the plea under Fed. R. Crim.
P. 32(e). United States v. Soriano-Hernandez, slip op. at 2 (May 4, 2001). On June 5,
2001, Defendant filed a second motion to withdraw his guilty plea and a motion to
dismiss the indictment. On June 29, 2001, the district court again denied Defendant’s


                     Notwithstanding subsection (a) of this section, in the case
               of any alien described in such subsection –
                     ....
                     (2) whose removal was subsequent 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.
      4
          18 U.S.C. § 3282 provides:

                      Except 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.

                                            -4-
motion to withdraw his guilty plea, finding that Defendant waived his statute of
limitations defense when he pleaded guilty.5 District Court Order at 5-6. The district
court also held that, even if the Defendant had not waived the defense by pleading
guilty, the statute of limitations did not bar the prosecution because it did not begin
to run until the INS was in possession of all the information necessary to bring a
prosecution against a previously deported alien. See id. at 7. The district court
reasoned that Defendant’s use of aliases each time he was arrested prevented the INS
from having all of the information required to bring charges against Defendant until
June 30, 2000. See id. For that reason, the district court held that the five-year
statute of limitations had not expired when defendant was indicted on August 16,
2000. See id. On July 9, 2001, the district court entered a judgment sentencing
Defendant to eighty-four months imprisonment, two years of supervised release, and
a special assessment of $100.00. This appeal followed.

                                    DISCUSSION

       Because it is a question of law, we review de novo the district court’s
determination that Defendant’s guilty plea waived his statute of limitations defense.
Cf. United States v. Young, 223 F.3d 905, 909 (8th Cir. 2000) (whether a valid waiver
of rights occurred is a question of law reviewed de novo) (citations omitted); United
States v. Long Crow, 37 F.3d 1319, 1323 (8th Cir. 1994) (whether there is sufficient
evidence to submit an affirmative defense to a jury is a question of law subject to de
novo review) (citations omitted).6


      5
       At the hearing, the Defendant informed the district court that the only matter
before it was his motion to withdraw his guilty plea. Defendant requested a separate
hearing on his motion to dismiss the indictment if the district court granted his motion
to withdraw. See United States v. Soriano-Hernandez, Crim. No. 00-182, slip op. at
1 n.1 (D.S.D. June 29, 2001).
      6
        Other Circuits that have reviewed whether a defendant waived his or her
statute of limitations defense have also treated the question as a question of law
                                        -5-
       Defendant argues that the district court erred in holding that his guilty plea
constituted a waiver of the statute of limitations defense. We disagree. As noted by
the district court, “[a] plea of guilty, knowingly and understandably made, waives all
non-jurisdictional defects and defenses and equates with an admission of guilt.”
Cantrell v. United States, 413 F.2d 629, 632 (8th Cir. 1969) (citations omitted). This
court has treated the statute of limitations as an affirmative defense, even when it was
styled as a jurisdictional challenge. See United States v. Gomez, 38 F.3d 1031, 1033
n.4 (8th Cir. 1994) (upholding district court decision to deny defendant’s motion to
dismiss for lack of subject matter jurisdiction, which was based on the statute of
limitations) (citing United States v. DeTar, 832 F.2d 1110, 1114-15 (9th Cir. 1987)).
Moreover, courts in other circuits that have considered the issue have found that the
statute of limitations is an affirmative defense, not jurisdictional. See United States
v. Williams, 684 F.2d 296, 299 (4th Cir. 1982) (statute of limitations in 18 U.S.C.
§ 3282 is not jurisdictional, but a waivable affirmative defense); see also United
States v. Najjar, 283 F.3d 1306, 1309 (11th Cir. 2002) (“[T]he expiration of the statute
of limitations does not divest a district court of subject matter jurisdiction, but rather
constitutes an affirmative defense, which the defendant can waive . . . .”) (citations
omitted), petition for cert. filed, 70 U.S.L.W. 3790 (U.S. May 29, 2002); United
States v. Spector, 55 F.3d 22, 24 (1st Cir. 1995) (“A statute of limitations defense is
a waivable affirmative defense, not a jurisdictional bar to prosecution. Failure to
raise the defense in a timely manner can result in its waiver, as can an unqualified
guilty plea . . . .”) (citations omitted)); United States v. Wilson, 26 F.3d 142, 155
(D.C. Cir. 1994) (same); United States v. Karlin, 785 F.2d 90, 92-93 (3rd Cir. 1986)
(same); United States v. Meeker, 701 F.2d 685, 687 (7th Cir. 1983) (same). But see
United States v. Crossley, 224 F.3d 847, 858 (6th Cir. 2000) (the statute of limitations

subject to de novo review. See, e.g., United States v. Najjar, 283 F.3d 1306, 1306
(11th Cir. 2002) (reviewing de novo as a question of law the district court’s denial of
defendant’s motion to dismiss for lack of jurisdiction due to the expiration of the
statute of limitations); United States v. Spector, 55 F.3d 22, 25 (1st Cir. 1995)
(reviewing de novo district court’s decision that an unsigned agreement did not waive
defendant’s statute of limitations defense).
                                          -6-
is a bar to prosecution absent an explicit waiver); United States v. Cooper, 956 F.2d
960, 961-62 (10th Cir. 1992) (holding that the statute of limitations defense under 18
U.S.C. § 3282 is a jurisdictional bar to prosecution which must be expressly waived
by the defendant). Although it has not addressed the issue directly, the Supreme
Court has also implied that the statute of limitations is an affirmative defense and not
jurisdictional. See Biddinger v. Commissioner of Police, 245 U.S. 128, 135 (1917)
(“The statute of limitations is a defense and must be asserted on the trial by the
defendant in criminal cases . . . .”). In this case, Defendant pleaded guilty to illegal
reentry and did not raise a statute of limitations defense at the time his plea was
entered. Therefore, as the district court correctly explained, he waived this defense.

       Defendant next argues that the district court abused its discretion in denying
his motion to withdraw his guilty plea, arguing that his counsel’s failure to inform
him of the statute of limitations defense was a fair and just reason for withdrawal. We
review the district court’s denial of Defendant’s motion to withdraw his guilty plea
for an abuse of discretion. See United States v. Newson, 46 F.3d 730, 732 (8th Cir.
1995) (citing United States v. Capito, 992 F.2d 218, 219 (8th Cir. 1993)). Under Fed.
R. Crim. P. 32(e), Defendant has the burden of showing the existence of “any fair
and just reason” to permit the withdrawal of his guilty plea before his sentencing.7
See United States v. Prior, 107 F.3d 654, 657 (8th Cir. 1997) (“Rule 32(e) of the


      7
        Besides “any fair and just reason,” additional factors to be considered by the
court in determining whether to allow a defendant to withdraw a guilty plea include:
whether the defendant has asserted his or her innocence; the length of time between
the guilty plea and the motion to withdraw; and whether the government will be
prejudiced by the withdrawal. See United States v. Morales, 120 F.3d 744, 747 (8th
Cir. 1997) (citing United States v. Prior, 107 F.3d 654, 657 (8th Cir. 1997)). Because
the district court found that the Defendant had not presented “any fair and just
reason” to withdraw his plea, it was not necessary for the court to examine these
additional factors. See United States v. Payton, 168 F.3d 1103, 1104-05 (8th Cir.
1999) (citing United States v. Gray, 152 F.3d 816, 819 (8th Cir. 1998)) (additional
citations omitted).
                                           -7-
Federal Rules of Criminal Procedure provides that a district court may permit a
defendant to withdraw a guilty plea . . . upon a showing of ‘any fair and just
reason,’and we have held that the defendant bears the burden of establishing such
justification.”) (quoting United States v. Yell, 18 F.3d 581, 582 (8th Cir. 1994)).

       Defendant contends that he presented a fair and just reason to withdraw his
guilty plea because he was unaware of the statute of limitations defense at the time
of his plea and he would not have pleaded guilty had he known of the defense.8 We
agree with the reasoning of the district court that Defendant failed to present a fair
and just reason for withdrawing his guilty plea because, even if Defendant had not
waived the statute of limitations defense, the statute of limitations did not actually
begin to run until the Defendant was discovered by the INS. See United States v.
Gomez, 38 F.3d 1031, 1036 (8th Cir. 1994) (holding that an alien is “found in” the
United States for the purposes of 18 U.S.C. § 3282 when that alien is “discovered in”
the United States by immigration authorities); United States v. Diaz-Diaz, 135 F.3d
572, 577 (8th Cir. 1998) (same) (citing Gomez, 38 F.3d at 1036); accord United States
v. Acevedo, 229 F.3d 350, 356 (2nd Cir. 2000) (holding statute of limitations begins
to run when local law enforcement officials informed INS of defendant’s presence,
not when defendant presented false identity papers upon entry). At the time of his
prior arrests in 1992 and 1993, Defendant used aliases which prevented the INS from
discovering his illegal presence. Because the INS did not become aware of
Defendant’s presence in the United States until June 30, 2000, the five-year statute
of limitations under 18 U.S.C. § 3282 had not expired when Defendant was indicted
on August 16, 2000. Therefore, the district court reasonably determined that
Defendant’s failure to raise the statute of limitations defense was not a fair and just
reason for the withdrawal of his plea. No abuse of discretion occurred.



      8
        Defendant’s former counsel also stated that he did not discuss the possible
statute of limitations defense with the Defendant and that he would not have advised
his client to plead guilty had he known of the defense.
                                          -8-
       Defendant also argues that his claim of ineffective assistance of counsel
required the district court to invalidate his plea agreement. We decline to address the
issue at this time because a claim of ineffective assistance of counsel is generally not
a basis for direct appeal and instead should be properly raised in a 28 U.S.C. § 2255
action.9 See United States v. Hernandez, 281 F.3d 746, 749 (8th Cir. 2002) (citing
United States v. Brown, 183 F.3d 740, 743 (8th Cir. 1999)) (additional citations
omitted).

                                   CONCLUSION

      Accordingly, the judgment of the district court is affirmed.

      A true copy.

             Attest:

                       CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




      9
       A claim of ineffective assistance of counsel may be considered on direct
appeal only in exceptional cases where either the district court has fully developed
a record on the ineffectiveness claim, United States v. Reddix, 106 F.3d 236, 238 (8th
Cir. 1997) (citing United States v. Jennings, 12 F.3d 836, 840 (8th Cir. 1994)), or
where the result would otherwise be a plain miscarriage of justice. United States v.
Reddix, 106 F.3d at 238 (citing United States v. DePuew, 889 F.2d 791, 792-93 (8th
Cir. 1989)). Neither exception is applicable in the present case.
                                         -9-
