     Case: 10-20107 Document: 00511336193 Page: 1 Date Filed: 12/30/2010




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

                                                                              FILED
                                     No. 10-20107                        December 30, 2010
                                   Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

SAMUEL SANTOS-GUEVARA, also known as Samuel Reyes-Guevara, also
known as Samuel Santos Guevara,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CR-397-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Following a stipulated bench trial, the district court found Samuel Santos-
Guevara guilty of being an alien previously removed after conviction for an
aggravated felony who was found in the United States without having obtained
consent to reenter and sentenced him to 40 months in prison. Santos-Guevara
appeals the district court’s denial of his motion to dismiss the indictment as



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-20107 Document: 00511336193 Page: 2 Date Filed: 12/30/2010

                                  No. 10-20107

barred by the applicable five-year statute of limitations.      The Government
concedes that the indictment was returned more that five years after Santos-
Guevara was “found in” the United States and that the indictment is barred by
the statute of limitations.
      We review the district court’s factual findings for clear error and its legal
conclusions de novo. United States v. Gunera, 479 F.3d 373, 376 (5th Cir. 2007).
Prosecution under § 1326 for unlawful presence must be instituted by indictment
returned or information filed within five years after the alien is found in the
United States. Id.; 18 U.S.C. § 3282(a). “[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).
      A December 2003 letter from immigration authorities sent to Santos-
Guevara under his alias shows that by that date immigration authorities had
enough information, including an FBI fingerprint background check, to be
reasonably attributed with knowledge of Santos-Guevara’s illegal presence in
the United States, despite any false, misleading, or missing information in
Santos-Guevara’s applications for temporary protected status.             Because
knowledge of Santos-Guevara’s illegal presence in the United States can
reasonably be attributed to immigration authorities more than five years before
the July 15, 2009, indictment was returned, the indictment was not timely. See
Santana-Castellano, 74 F.3d at 598. We REVERSE the denial of the motion to
dismiss the indictment, VACATE Santos-Guevara’s conviction and sentence, and
DISMISS the indictment.




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