     Case: 11-10921    Document: 00512178609     Page: 1   Date Filed: 03/19/2013




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

                                                                   FILED
                                                                  March 19, 2013

                                  No. 11-10921                    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


Before REAVLEY, PRADO, and ELROD, Circuit Judges.
PRADO, Circuit Judge:
      Defendant–Appellant Osvaldo Compian–Torres was convicted of illegally
reentering the country. He appealed his conviction, and this Court affirmed. We
granted a motion for rehearing and now affirm.
                                        I
      Osvaldo Compian–Torres (“Compian”) is a Mexican citizen who was
removed from the United States in 1998 after admitting that he had entered the
country illegally. He was apprehended again in 2000 and pleaded guilty to
illegally reentering the country. After serving his sentence for the 2000 reentry,
Compian was released into immigration custody and subsequently deported on
November 7, 2003. The terms of his supervised release forbade him from
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                                 No. 11-10921

illegally reentering the country.    Those terms notwithstanding, Compian
illegally returned to the United States shortly after his deportation. Compian
was then arrested and charged with assault in Dallas on January 12, 2004.
However, the charges were dropped and Compian was released days later. The
police apparently did not suspect that he was illegally present.
       Around June 21, 2004, a probation officer became aware of Compian’s
January 2004 arrest and filed a petition alleging that Compian had violated the
terms of his supervised release by illegally reentering the country. A warrant
was issued on June 23, 2004, but Compian was not arrested until two years
later. On July 28, 2006, the district court revoked Compian’s supervised release
and sentenced him to a term of imprisonment. On September 9, 2006, the
Bureau of Prisons released Compian from its custody.         At no point were
immigration officials notified about Compian’s reentry, arrest, imprisonment, or
release, though a copy of the release revocation petition found its way into
Compian’s alien file.
       On May 11, 2010, Compian was arrested for assault again. At some point
officials began to suspect that Compian was illegally present, and so he was
transferred to the custody of immigration officials on August 20, 2010.
Immigration officials determined that Compian had been previously removed in
2003 and that he had illegally reentered sometime thereafter. Accordingly, on
October 6, 2010, Compian was indicted for violating 8 U.S.C. § 1326. The
indictment alleged that Compian had been removed on November 7, 2003, that
he was found on or about August 20, 2010, and that he had not received
permission to reenter the country. Compian pleaded not guilty and proceeded
to trial.
       The government presented four witnesses. The first witness was Officer
Aaron Nation, a deportation officer with Immigration and Customs Enforcement
(“ICE”). He described the contents of Compian’s alien file and discussed the

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                                  No. 11-10921

procedure by which ICE is notified when suspected illegal aliens are in the
custody of law enforcement. Usually, some other law enforcement agency
suspects an individual is illegally present, at which point ICE is notified and the
appropriate inquiries occur. Officer Nation further testified that ICE was not
notified about Compian’s arrest in 2004, nor his imprisonment and subsequent
release, both of which occurred in 2006.
        The government’s second witness testified about his encounter with
Compian, on August 20, 2010, after Compian was in ICE custody. The third
witness testified to matching Compian’s fingerprints to the fingerprints on
Compian’s 2003 warrant of removal. The government’s last witness testified
that there were no records indicating Compian had applied for or received
permission to reenter the United States after he was removed on November 7,
2003.
        After the government rested its case, Compian made a Rule 29 motion for
a judgment of acquittal, which was denied. Compian did not present any
witnesses and rested his case.       The jury found Compian guilty and, on
September 12, 2011, Compian was sentenced to 109 months’ imprisonment.
Compian then filed a timely appeal challenging the sufficiency of the evidence.
        This Court issued an opinion affirming Compian’s conviction on October
24, 2012.    See United States v. Compian–Torres, No. 11-10921, 2012 WL
5246686, at *1 (5th Cir. Oct. 24, 2012). In that opinion, the Court applied a
plain error standard of review to Compian’s claim because, while couched in
terms of sufficiency, Compian’s appeal presented a purely legal question that
had not been preserved in the district court. Compian filed a petition for panel
rehearing on November 7, 2012. In his petition, Compian argued that the Court
had not applied the correct standard of review. We granted Compian’s petition
on November 28, 2012.



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                                        II
      As this is a direct appeal from the final decision of a district court, this
Court has jurisdiction pursuant to 28 U.S.C. § 1291.
                                       III
      The Court granted Compian’s motion for rehearing to reconsider which
standard of review is appropriate when, as here, a challenge to the sufficiency
of the evidence masks a purely legal question. As explained below, we need not
address this question because Compian’s claim fails even under the de novo
standard he advocates.
                                        A
      On appeal, this Court applies de novo review when a defendant preserves
a challenge by making a motion for judgment of acquittal. United States v.
Valentine, 401 F.3d 609, 615 (5th Cir. 2005). Under that standard, we affirm if
a rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. Id. When an issue is raised for the first time on
appeal, however, we review for plain error. United States v. Treft, 447 F.3d 421,
424–25 (5th Cir. 2006). To show plain error, a defendant must show that a
forfeited error is clear or obvious, and that it affects his substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009). If such a showing is made,
the Court has the discretion to correct the error only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
      In our initial opinion we applied plain error review to Compian’s claim
because it presented a purely legal question that had not been preserved in the
district court. Compian–Torres, 2012 WL 5246686, at *1. We reached this
conclusion based on the precedent set out in three cases: Treft, 447 F.3d at
424–25 & n.4 (reviewing for plain error a legal determination raised for the first
time on appeal when the defendant had dropped his original motion for acquittal
earlier in the proceedings); United States v. Brace, 145 F.3d 247, 257–58 & n.2

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(5th Cir. 1998) (en banc) (reviewing for plain error a new, unpreserved legal
subissue within an otherwise preserved sufficiency claim); and United States v.
Loney, 959 F.2d 1332, 1334 (5th Cir. 1992) (reviewing for plain error when a
preserved sufficiency claim in fact presents a purely legal claim).
      Compian, in his motion for rehearing, cited three previously unmentioned
cases in support of his assertion that de novo review should apply. See United
States v. Williams, 602 F.3d 313, 315 (5th Cir. 2010) (applying de novo review
to a sufficiency claim that required determining what conduct constitutes an
offense under the relevant statute); United States v. Cuellar, 478 F.3d 282, 287
(5th Cir. 2007) (en banc) (reviewing de novo a sufficiency claim dependant on a
question of legal interpretation), rev’d on other grounds, 553 U.S. 550 (2008);
United States v. Santos–Riviera, 183 F.3d 367, 369 (5th Cir. 1999) (reviewing a
challenge to the sufficiency of an indictment de novo when the appeal involved
statutory interpretation). We granted Compian’s petition in order to review our
precedent within the context of this case.       However, having reexamined
Compian’s case, this Court need not address which standard of review is
appropriate because Compian’s claim fails, even under the more generous de
novo standard. As explained in more detail below, see infra Part III.B, Compian
was “found” in 2010 when immigration authorities became aware of his physical
presence; and a rational trier of fact could find Compian guilty beyond a
reasonable doubt based on the evidence presented at trial.
                                       B
      Compian’s appeal is phrased as a challenge to the sufficiency of the
evidence, but it in fact presents a pure question of law. While Compian claims
that there was insufficient evidence to convict him, this assertion entirely
depends on a legal claim—namely, that he was “found” for purposes of 8 U.S.C.
§ 1326(a)(2) in 2004 and not in 2010, as the government claims. For the reasons
that follow, Compian was “found” in 2010, and the evidence presented at trial

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was sufficient to allow a rational trier of fact to find Compian guilty beyond a
reasonable doubt.
      Section 1326(a) authorizes penalties for any previously deported alien who
is thereafter “found” in the United States. 8 U.S.C. § 1326(a). In the Fifth
Circuit, “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.” United States v. Santana–Castellano, 74 F.3d 593, 598
(5th Cir. 1996). Thus, in order to be found, (1) immigration authorities must
have specifically discovered and noted the alien’s physical presence, and (2)
knowledge of the illegality of the alien’s presence must be reasonably
attributable to immigration authorities. A § 1326 offense “begins at the time the
defendant illegally re-enters the country and does not become complete unless
or until the defendant is found by the [ICE] in the United States.” United States
v. Corro–Balbuena, 187 F.3d 483, 485 (5th Cir. 1999). “[T]he five year statute
of limitations under § 1326 begins to run at the time the alien is ‘found,’ barring
circumstances that suggest that the [ICE] should have known of his presence
earlier, such as when he reentered the United States through an official border
checkpoint    in    the    good   faith   belief   that   his   entry    was    legal.”
Santana–Castellano, 74 F.3d at 597.
      Compian’s position is that an alien is “found” under § 1326 whenever an
agent of the federal government encounters an alien and knows or should have
known that the alien’s presence is unlawful. However, such a rule would
constitute an unauthorized departure from this Circuit’s precedent. See French
v. Allstate Indem. Co., 637 F.3d 571, 589 (5th Cir. 2011) (stating that one panel
may not overturn another panel’s decision absent an intervening change in
law—such as a statutory amendment, a Supreme Court decision, or an en banc

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court). In order to be “found” under § 1326, an alien’s physical presence must be
discovered and noted by immigration authorities and the illegality of the alien’s
presence must be reasonably attributable to immigration authorities through the
exercise of typical law enforcement diligence. Santana–Castellano, 74 F.3d at
598. The first step of our test requires that immigration authorities discover and
note the presence of the alien, and Compian does not contest the fact that, after
his 2003 removal, he did not encounter immigration officials again until 2010.
Thus, under the plain language of our test, it cannot be said that Compian was
“found” in 2004 when he was arrested by state police officers and alleged to be
in violation of the terms of his supervised release by a federal probation officer.
The fact that Compian’s alien file contained a copy of the revocation of his
supervised release does not alter this outcome because holding otherwise would
create a requirement that ICE actively monitor all alien files at all times for any
information suggesting an alien had returned to the United States.
      Furthermore, even if this panel could depart from the language of our
established precedent, Compian’s position would require imputing knowledge to
immigration authorities whenever an alien’s presence is discovered and noted
by another government agent—i.e., the first prong of the test. Compian has not
put forth any case law that supports his desired outcome. The first case he cites,
United States v. Gunera, 479 F.3d 373 (5th Cir. 2007), dealt exclusively with the
second prong of the § 1326 test and is thus inapposite. In Gunera, an unlawfully
present alien applied for Temporary Protected Status (“TPS”) through the
immigration authorities using his real name, date of birth, and place of birth,
while omitting his previous conviction, prior deportation, and alien number. 479
F.3d at 375. Using the information provided, the immigration authorities were
able to discover Gunera’s prior conviction and deportation, but they waited over
five years to arrest him. Id. The government claimed that Gunera had not been
“found” until his arrest because the immigration authorities were not aware that

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Gunera’s presence was illegal given that Gunera omitted critical information on
his TPS application. Id. at 376. The Court rejected the government’s position
and held that “the immigration authorities can reasonably be attributed with
actual knowledge that Gunera was present illegally in the U.S.” when his prior
deportation for an aggravated felony was discovered. Id. Gunera thus dealt
exclusively with the second prong of our § 1326 test; the case hinged on when
immigration authorities—who had already discovered and noted Gunera’s
presence—should have known that Gunera’s presence was unlawful. The first
prong was not in dispute because Gunera submitted his application directly to
immigration authorities, thereby providing them with the requisite discovery
and notice of his physical presence.1 By contrast, Compian was arrested by state
police and his supervised release was revoked by judicial officials. His physical
presence was not discovered or noted by immigration authorities until he
entered ICE custody in 2010, and the notice or actual knowledge of one United
States government agency generally is not imputed to other agencies. United
States v. Harms, 442 F.3d 367, 377 (5th Cir. 2006).
      Compian also cites United States v. Vargas–Garcia, 434 F.3d 345 (5th Cir.
2005), in an attempt to expand the scope of our test from requiring discovery by
“immigration authorities” to “the government” or just “authorities” more broadly.
However, the selective quotations Compian relies upon are actually quotations
from a Second Circuit case used in Vargas–Garcia merely to illustrate the
circumstances under which an illegal reentry constitutes a continuing offense.
See 434 F.3d at 349. In fact, when paraphrasing the Fifth Circuit’s precedent on
point, the court refers to “the relevant authorities,” further underscoring the
specific importance of “immigration authorities” in our § 1326 jurisprudence.


      1
         Moreover, Gunera provided immigration authorities with his current physical
address, further underscoring immigration authorities’ awareness of his physical presence.
See 479 F.3d at 375. The same cannot be said here.

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See id. Moreover, even after Vargas–Garcia, the Santana–Castellano test has
been continually applied verbatim in the Fifth Circuit. See, e.g., United States
v. Santos–Guevara, 406 F. App’x 874, 874 (5th Cir. 2010) (per curiam)
(unpublished); Gunera, 479 F.3d at 376; United States v. Alvarado–Santilano,
434 F.3d 794, 798 (5th Cir. 2005).
      Therefore, for an alien to be “found” under § 1326, immigration authorities
must discover and note the alien’s physical presence, and the illegality of the
alien’s presence must be known or reasonably attributable to immigration
authorities. Ultimately, a rational trier of fact could find Compian guilty beyond
a reasonable doubt based on the evidence presented at trial. The government
presented witness testimony showing that Compian was taken into ICE custody
in 2010, that Compian had previously been deported, and that Compian
unlawfully reentered the United States sometime after his deportation. There
was thus sufficient evidence to convict Compian.
                                       IV
      For the forgoing reasons, Compian’s conviction is AFFIRMED.




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