                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 5, 2003

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 03-20235
                         Summary Calendar



                     UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

                               versus

                    OSCAR RENE CANO-BENAVIDES,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. H-02-CR-176-ALL
                      --------------------

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Oscar Rene Cano-Benavides was convicted following a bench

trial for being found in the United States, on December 11, 2001,

following deportation, in violation of 8 U.S.C. § 1326(a).         Cano

has appealed his conviction.

     Cano contends that the district court erred in refusing to

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

limitations had expired because he was first “found in” the United

States on October 24, 1994, the date on which his sister filed a


     *
       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this opinion should not be published and is not precedent except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.
                               No. 03-20235
                                    -2-

visa petition on his behalf.         Cano contends also that the district

court erred in denying his request that the jury be required to

determine when he was “found in” the United States.

       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.    The district

court’s fact findings are reviewed for clear error and its legal

conclusions are reviewed de novo.          See United States v. Wilson, 322

F.3d 353, 359 (5th Cir. 2003).

       Cano argues that the visa petition notified the Immigration

and Naturalization Service (“INS”) of his presence in the United

States and that the form provided sufficient information from which

the INS could have determined the illegality of his status.                     He

contends that it was not reasonable for the INS to fail to discover

the illegality of his presence in the United States.
                                No. 03-20235
                                     -3-

     But, in the visa petition, Cano’s sister did not disclose

Cano’s    previous   deportation    nor   his   identification     number   as

requested. Because of these ambiguities in the visa petition, Cano

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 finding that the

INS did not have actual knowledge that Cano was the intended

beneficiary of the visa petition was not clearly erroneous.

     A defendant is entitled to a jury instruction “as to any

recognized defense for which there exists evidence sufficient for

a reasonable jury to find in his favor.”         United States v. Branch,

91 F.3d 699, 711-12 (5th Cir 1996).         Based on the failure of the

visa petition to clearly identify Cano, the district court did not

err in finding that, as a matter of law, Cano was not “found” by

the INS by virtue of the petition.        For those reasons, the district

court did not err in refusing to dismiss the indictment because the

limitation period had run or in refusing to require the jury to

determine the “found in” date.

     Cano contends that the district court erred in failing to

dismiss the indictment because his 1986 conviction for delivery of

heroin,    for   which   his   sentence   was   enhanced   under   8   U.S.C.

§ 1326(b), was not defined by Title 8 as an “aggravated felony” at

the time the offense was committed.         The court rejected the same

argument in United States v. Saenz-Forero, 27 F.3d 1016, 1018–22

(5th Cir. 1994) (analyzing issue under Ex Post Facto Clause).
                             No. 03-20235
                                  -4-

Thereafter, by § 321(b) of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 STAT.

3009 (1997) (“IIRIRA”), Congress amended the statutory “aggravated

felony”   definition   to   clarify   that    the   definition    “applies

regardless of whether the conviction was entered before, on, or

after September 30, 1996.”       See 8 U.S.C. § 1101(a)(43).           The

amended definition applies “to actions taken on or after the

[enactment date of the IIRIRA], regardless of when the conviction

occurred, and shall apply under section 276(b) of the Immigration

and Nationality Act [8 U.S.C. § 1326(b)] only to violations of

section 276(a) of such Act occurring on or after such date.”

IIRIRA § 321(c).   The violation in this case occurred on December

11, 2001, after the effective date of IIRIRA § 321.        Accordingly,

the amendment to 8 U.S.C. § 1101(a)(43) is applicable.           See United

States v. Herrera-Solorzano, 114 F.3d 48, 50 (5th Cir. 1997).          The

district court did not err in refusing to dismiss the indictment

because Cano’s prior conviction was not defined as an “aggravated

felony” at the time it was committed.        The conviction is

     AFFIRMED.
