     Case: 11-10921     Document: 00512031241         Page: 1     Date Filed: 10/24/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 24, 2012
                                     No. 11-10921
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

OSVALDO COMPIAN-TORRES,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:10-CR-282-1


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Osvaldo Compian-Torres (Compian) was charged by indictment with being
an alien found unlawfully present in the United States in August 2010 following
a prior deportation. A jury convicted Compian, and the district court sentenced
him to 109 months of imprisonment and a three-year term of supervised release.
Compian filed a timely notice of appeal.
        Compian concedes that he is an alien, that he had been deported in
November 2003, that he reentered this country without permission, and that he

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-10921    Document: 00512031241       Page: 2   Date Filed: 10/24/2012

                                   No. 11-10921

was later found here. He explains that federal prosecutors discovered his
presence in 2004 and had a then-active term of supervised release revoked.
Upon revocation, Compian was incarcerated and then later released in 2006.
Compian argues that he was “found” for purposes of 8 U.S.C. § 1326 in 2004 and
that he thus could not have later been “found” in 2010 absent proof of a
departure after 2004 and a new illegal reentry. Accordingly, he maintains that
there was insufficient evidence to support his conviction.
      Although Compian couches his argument in terms of sufficiency, his
contention that he was “found” in 2004 raises a legal question. See United States
v. Loney, 959 F.2d 1332, 1334 (5th Cir. 1992). His motion for a judgment of
acquittal did not preserve this legal question. See United States v. Brace, 145
F.3d 247, 257-58 & n.2 (5th Cir. 1998). Where a defendant raises a legal issue
for the first time on appeal, this court reviews for plain error. United States v.
Treft, 447 F.3d 421, 424-25 (5th Cir. 2006); see Brace, 145 F.3d at 257-58. To
show plain error, Compian must show a forfeited error that is clear or obvious
and that affects his substantial rights. See Puckett v. United States, 556 U.S.
129, 135 (2009). If he makes such a showing, this court has the discretion to
correct the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
      Under this court’s precedent, Compian was not found illegally present in
this country until 2010, when he was encountered by immigration officials who
determined his illegal status. See United States v. Santana-Castellano, 74 F.3d
593, 598 (5th Cir. 1996). For Compian to prevail on appeal, this court’s holding
in Santana-Castellano would have to be extended to include an alien’s discovery
by federal officials other than immigration officials. Accordingly, he has not
shown plain error. United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010).
      AFFIRMED.




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