                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   June 10, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-20259
                           Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

EVARISTO FLORES-LEAL,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                        (4:03-CR-340-ALL)
                      --------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant Evaristo Flores-Leal (“Flores”) appeals

his conviction following a jury trial for being found in the United

States, on August 1, 2003, following deportation subsequent to a

conviction for an aggravated felony, in violation of 8 U.S.C. §

1326(a). Flores argues that the district court erred in refusing to

dismiss the indictment on the ground that the five-year statute of

limitations had expired.    He asserts that the limitations period

began on one of two alternative dates: (1) November 11, 1993, when


     *
       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this opinion should not be published and is not precedent except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.
he appeared at a port of entry and reentered the United States by

presenting facially valid immigration documents, or (2) April 5,

1998, when he submitted to the Immigration and Naturalization

Service a request for his immigration file under the Freedom of

Information Act (“FOIA”).

       Under 8 U.S.C. § 1326(a), it is a crime for an alien who has

been deported to be “found” in the United States.          In United States

v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir. 1996), we held

that “a previously deported alien is ‘found in’ the United States

when   his   physical   presence     is   discovered    and   noted   by   the

immigration authorities, and the knowledge of the illegality of his

presence,    through    the   exercise    of   diligence   typical    of   law

enforcement   authorities,     can   reasonably    be   attributed    to   the

immigration authorities.”      “[T]he five-year statute of limitations

under 8 U.S.C. § 1326 begins to run at the time the alien is

‘found,’ barring circumstances that suggest that the INS should

have known of his presence earlier . . . .”             Id.   We review the

district court’s fact findings for clear error and its legal

conclusions de novo.      See United States v. Wilson, 322 F.3d 353,

359 (5th Cir. 2003).

       Flores’s first argument, that he was found in the United

States when he appeared at the port of entry and entered the

country on November 11, 1993, is unavailing.            The government was

not put on notice by the facially valid documents that the entry

was illegal, and the “due diligence” required of immigration

                                      2
officials to discover an alien’s illegal presence does not impose

a duty to conduct background checks on every alien who attempts to

enter the country by presenting ostensibly valid papers.

     Neither did Flores’s FOIA request, which was signed and

submitted by his counsel, put the government on notice of Flores’s

illegal presence.   Although Flores signed the document authorizing

his counsel to receive the requested information, the document does

not provide an address for Flores or clearly indicate whether

Flores was in the United States when he signed it.        Because of

these ambiguities, Flores cannot show that his presence in the

United States was actually “discovered and noted by immigration

authorities.”   See Santana-Castellano, 74 F.3d at 598.

     The district court’s judgment is

AFFIRMED.




                                 3
