U.S.A v. Garcia

• Decision Date: 21 May 2010
• Docket Number: No. 09-10534.,09-10534.
• Citation: 606 F.3d 1317
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Luis PALOMINO GARCIA, a.k.a. Ramon Lopez-Garcia, a.k.a. Jose Luis Palomino Garcia, a.k.a. Luis Garcia Palomino, a.k.a. Jose Luis Palomino, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

606 F.3d 1317

UNITED STATES of America, Plaintiff-Appellee,v.Luis PALOMINO GARCIA, a.k.a. Ramon Lopez-Garcia, a.k.a. Jose Luis Palomino Garcia, a.k.a. Luis Garcia Palomino, a.k.a. Jose Luis Palomino, Defendant-Appellant.

No. 09-10534.

United States Court of Appeals Eleventh Circuit.

May 21, 2010.

COPYRIGHT MATERIAL OMITTED

George Allen Couture and Donna Lee Elm, Fed. Pub. Defenders, James T. Skuthan, Acting Fed. Pub. Def., Orlando, FL, for Palomino Garcia.

Patricia D. Barksdale, Jacksonville, FL, Peggy Morris Ronca, Asst. U.S. Atty., Orlando, FL, for U.S.

Appeal from the United States District Court for the Middle District of Florida.

Before DUBINA, Chief Judge, and MARTIN and HILL, Circuit Judges.

MARTIN, Circuit Judge:

Luis Palomino Garcia appeals his conviction and 70-month sentence for illegal reentry into the United States in violation of 8 U.S.C. § 1326(a).He argues that his prosecution was barred altogether by the statute of limitations.Failing that, he argues that he was sentenced improperly in several ways.He says that his sentence was wrongly enhanced because his prior Arizona conviction for aggravated assault is not a “crime of violence” under the Sentencing Guidelines; that his sentence is unreasonable; and that the government's failure to allege in the indictment or prove to a jury a prior aggravated felony conviction violates his rights under the Fifth and Sixth Amendments.After thorough review and oral argument, we conclude that the district court did not abuse its discretion in failing to dismiss the indictment on statute of limitations grounds.We do, however, find the district court committed error by enhancing Mr. Palomino Garcia's sentence based on his conviction for aggravated assault under Arizona law.We therefore reverse and remand for resentencing on that issue.

I.

Mr. Palomino Garcia was born in Mexico and entered the United States at some point during the 1970s.He was deported on two separate occasions, once in 1995 and again in 1996 following his conviction for assaulting a police officer.After being deported for the second time in 1996, he again illegally reentered the United States.

In 1997he met Danette Negron, whom we will refer to as Mrs. Palomino.She is a United States citizen, and she and Mr. Palomino Garcia were married in 1999.About two years later, and just prior to the expiration of a provision of federal law creating a pathway to permanent legal status for certain undocumented immigrants,¹ Mrs. Palomino filed an I-130 Petition for Alien Relative with the Immigration and Naturalization Service (“INS”).²The I-130 Petition filed by Mrs. Palomino provided a substantial amount of accurate information about her husband.For example, the I-130 Petition accurately provided Mr. Palomino Garcia's current address in Mesa, Arizona; his date and place of birth in Mexico; his social security number; the date of his marriage, again in Mesa, Arizona; and the name and address of his employer in the United States.Other information, however, was contradictory or incomplete.For example, the I-130 Petition listed the defendant's name as “Luis Palom Palomino.”At the same time, the Biographic Information form accompanying the petition stated his name as “Luis Palomino Garcia,” and he signed the Biographic Information form with that name.However, attached to the Petition was a copy of a marriage certificate showing his name as “Luis Palmino” instead of “Luis Palomino.”The I-130 Petition did not include Mr. Palomino Garcia's Alien Registration Number despite the fact that two numbers had been previously issued to him.An item requesting any “Other Names Used (including maiden name)” was left blank, although information later submitted by Mrs. Palomino indicates that her husband has used at least seven different aliases.³Also in response to an item requesting the date Mr. Palomino Garcia“last arrived as a (visitor, student, stowaway without inspection, etc.),” Mrs. Palomino omitted any fact of his reentry after his previous two deportations, writing only: “Came here 25 yrs ago lives here.”And although Mrs. Palomino checked a box accurately indicating that her husband had been previously deported from Arizona in 1995, she omitted any reference to his 1996 deportation.

On April 3, 2002, the INS service center in California sent an Additional Evidence Request (“AER”) seeking additional information from Mrs. Palomino.The AER asked for evidence that the “Luis Palmino” listed on the marriage certificate referred to the same “Luis Palomino” for whom the petition was filed.Specifically, it sought a registered or recorded copy of the marriage certificate with Mr. Palomino Garcia's name spelled correctly.It requested complete biographic information for both Mr. and Mrs. Palomino with photographs of the two of them.In addition, the AER noted that the initial application indicated that “Luis Palomino” had been subject to prior “immigration proceedings,” and requested “an explanation of why [the defendant] is under immigration proceedings, including all information, circumstances, dates, file numbers, and photocopies of any correspondence relating to this matter.”

Mrs. Palomino responded to the AER in June 2002, partially complying with the requests made.She provided a certified copy of the defendant's birth certificate from Mexico (though not an English language translation).She supplied a corrected marriage license reflecting the defendant's name as “Luis Palomino.”She sent photographs of herself and her husband, as well as updated Biographic Information forms correctly identifying the defendant as “Luis Palomino Garcia.”Again, however, she failed to include his Alien Registration Number (omitting it from two different forms) and listed the defendant's name incorrectly as “Luis Palomino Garica” in the field for “other names used.”Perhaps most notably, she did not provide any additional information regarding either of the defendant's two prior deportations except to add “Mesa” to the location of the 1995 proceeding.

Nearly two years would pass before Mrs. Palomino heard anything more regarding her I-130 Petition.⁴During this time the INS was divided into three separate agencies as a result of a restructuring following the September 11, 2001 terrorist attacks.⁵Then in March 2004, the newly created Citizenship and Immigration Services (“CIS”) sent another AER to Mrs. Palomino requesting, again, that she provide more information about the defendant's prior immigration proceedings.A third AER followed in July 2004, this time requesting evidence of Mrs. Palomino's citizenship.

Mrs. Palomino responded to these AERs in June and October 2004, respectively.

We share the district court's observation that the record is not entirely clear as to which documents were included in which response.We do know that these responses collectively included Mrs. Palomino's New York birth certificate; a corrected marriage license showing the defendant's name as “Luis Palomino;” and various court records pertaining to two of Mr. Palomino Garcia's prior state criminal convictions.Although Mrs. Palomino never gave all of the requested information about her husband's prior deportation proceedings, the court records she provided do at least mention Mr. Palomino Garcia's initial illegal entry into the United States in 1976; that he has been previously “deported on several occasions;” and that he returned illegally only four days after his deportation in 1995.

Following receipt of Mrs. Palomino's 2004 responses to the AERs, her I-130 Petition was stamped complete and ready for filing.Consistent with CIS procedure, the file was then reviewed and a database search run to check Mr. Palomino Garcia's “status,” which is to say the legality of his presence, before the file was sent to a CIS field office for investigation.Based on this review, CIS determined that Mr. Palomino Garcia was residing in the United States illegally after having been previously deported.This determination was documented in a December 29, 2004 memorandum to Mr. Palomino Garcia's file.Despite CIS's knowledge of Mr. Palomino Garcia's illegal reentry, no action was taken to prosecute him until, more than three years later, he was arrested in Florida for a traffic violation and local authorities alerted Immigration and Customs Enforcement agents to his presence.

On April 9, 2008, almost seven years after the original I-130 Petition was filed, the government obtained a one-count indictment charging Mr. Palomino Garcia with illegal reentry in violation of 8 U.S.C. § 1326(a).Mr. Palomino Garcia stipulated to each element of the offense, but moved to dismiss the indictment as time-barred.After a hearing, the district court found that immigration authorities acted with reasonable diligence in determining the defendant's illegal presence in the United States, and denied his motion to dismiss the indictment.The district court relied on the incomplete and inaccurate information contained in the I-130 Petition and responses to the AERs, as well as the large number of petitions received by the government around the same time and the increased security measures and demands on law enforcement officers resulting from the September 11th terrorist attacks.The district court then found Mr. Palomino Garcia guilty of illegal reentry and imposed a sentence of 70-months imprisonment, which was the bottom of the Guidelines range.This appeal followed.

II.

Mr. Palomino Garcia argues that his April 9, 2008 indictment is barred by the statute of limitations and that the district court erred when it denied his motion to dismiss the indictment.This Court reviews a district court's denial of a motion to dismiss the indictment for abuse of discretion.United States v. Clarke,312 F.3d 1343, 1345 n. 1(11th Cir.2002)(citingUnited States v. Pielago,135 F.3d 703, 707(11th Cir.1998)).However, “we review de novo ‘the district court's interpretation and...