U.S. v. Mendez-Santana

• Decision Date: 21 May 2009
• Docket Number: No. 08-cr-20092.,08-cr-20092.
• Citation: 615 F.Supp.2d 624
• Parties: UNITED STATES of America, Plaintiff, v. Lorenzo MENDEZ-SANTANA, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

615 F.Supp.2d 624

UNITED STATES of America, Plaintiff, v. Lorenzo MENDEZ-SANTANA, Defendant.

No. 08-cr-20092.

United States District Court, E.D. Michigan, Southern Division.

May 21, 2009.

Michael R. Mueller, U.S. Attorney's Office, Detroit, MI, for Plaintiff.

Federal Defender, Federal Defender Office, Detroit, MI, Andrea J. Ferrara, Eastpointe, MI, for Defendant.

ORDER DENYING DEFENDANT'S MOTION TO WITHDRAW PLEA AND MOTION TO DISMISS INDICTMENT

GERALD E. ROSEN, Chief Judge.

I. INTRODUCTION

Defendant Lorenzo Mendez-Santana is charged with unlawful reentry into the United States in violation of 8 U.S.C. § 1326. Defendant, who was previously deported after conviction for the commission of an aggravated felony as defined in 8 U.S.C. § 1102(a)(43), was found to be knowingly and unlawfully in the United States at Dearborn, Michigan, without having obtained the consent of the Attorney General for reapplication of admission into the United States. On December 9, 2008, Defendant filed the instant combined Motion to Withdraw Plea of Guilty and Motion to Dismiss Indictment. The Government filed its response on April 1, 2009. The Court denies Defendant's Motions for the following reasons.

II. FACTUAL BACKGROUND

On July 3, 2008, Defendant Lorenzo Mendez-Santana ["Mendez"] pled guilty without a Rule 11 plea agreement to the basic offense of unlawful reentry after deportation in violation of Section 276 of the Immigration and Nationality Act. 8 U.S.C. § 1326(a). Mendez subsequently moved to dismiss the indictment, arguing that the charge was brought after the applicable statute of limitations period had run.

Mendez, a citizen of Mexico, is an illegal alien. He entered the United States and was deported back to Mexico on two separate occasions: on or about May 1, 1987, and on or about, April 30, 1994. The second deportation occurred after Mendez finished serving a four-year sentence for first degree rape in Oregon. He returned to the United States within several months of his second removal without first receiving approval from the Attorney General as required by law. Although Mendez was arrested by local law enforcement authorities on various charges and under different aliases between 1987 and 2000, he continued to live and reside in the U.S. at various locations, undetected by immigration authorities.

On January 12, 2000, Mendez was arrested in Brighton, Michigan for credit card possession in violation of Mich. Comp. Law § 750.157P. He pled guilty to this offense, under the name Mauro Mendez-Santana, and was placed on probation. On July 9, 2000, the State of Michigan probation department in Livingston County referred Mendez to the Immigration and Naturalization Service ("INS").¹ An immigration detainer was placed on Mendez and he was taken into custody.

While in custody, Mendez was processed by immigration officers, fingerprinted and issued a Notice to Appear before an Immigration Judge. A lien report revealed three state identification numbers as well as an FBI identification number, showing Mendez's criminal history and his various aliases. However, for unknown reasons, immigration authorities failed to further investigate his deportation history. Mendez was assigned a new alien registration number (an "A-Number") under the name Mauro Mendez-Santana. The Notice to Appear, dated July 17, 2000, charged Mendez under Section 212(a)(6)(A)(i) of the Immigration and Nationality Act as amended, as "an alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General." 8 U.S.C. § 1182(a)(6)(A)(I). The Notice made no reference to the prior deportations. Mendez was released on a $1,500 bond pending a hearing before an Immigration Judge. On January 26, 2001, the Immigration Judge granted Mendez voluntary departure within 120 days, in lieu of removal. Mendez then failed to depart the U.S. by the ordered date and became subject to an automatic order of deportation.

On February 4, 2008, Mendez was found in Dearborn, Michigan and taken into federal custody. At the time of his arrest, he was found to be in possession of two separate Michigan drivers licenses, one issued to "Lorenzo Mendez-Santana" and one issued to "Mauro Mendez-Santana." On July 3, 2008, he pled guilty before this Court to the offense of being found in the United States after deportation in violation of 8 U.S.C. § 1326. Mendez now seeks to withdraw his plea, claiming that the statute of limitations has expired on the charge. He argues that he was first "found in" the United States by immigration authorities under the meaning of 8 U.S.C. § 1326 in 2000, when "a proper investigation by INS agents ... would have revealed the same information that was turned over to the U.S. Attorney's office in 2008 by the Immigration and Customs Enforcement agents." (Br. in Supp. of Mot. to Withdraw Plea & Mot. to Dismiss Indictment ¶ 12.) The government counters that Mendez is not entitled to the protection of the statute of limitations, because he actively evaded immigration authorities by using aliases and giving false information.

III. DISCUSSION

A. APPLICABLE LAW

Defendant has been charged with a violation of 8 U.S.C. § 1326 which provides in part:

(a) Subject to subsection (b), any alien who—

(1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter

(2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this or any prior Act,

shall be fined under title 18, United States Code, or imprisoned not more than 2 years or both.

(b) Notwithstanding subsection (a), in the case of any alien described in such subsection— ...

(2) whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such title, imprisoned not more than 20 years, or both....

The crime of illegal re-entry is subject to a five-year statute of limitations. 18 U.S.C. § 3282. "The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions." Toussie v. United States, 397 U.S. 112, 114, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970). The statute of limitations in criminal cases begins to run when the crime is "complete." Id. at 115, 90 S.Ct. 858.

B. Whether an alien is "found in" the United States.

The main issue in this case is whether Mendez was found in the United States when he was taken into custody by immigration authorities in July 2000, or whether his use of a false identity and provision of false information tolled the running of the statute of limitations until his re-discovery in 2008. The Sixth Circuit has not yet squarely addressed when an alien is deemed to be "found in" the United States by immigration authorities under section 1326.

Most other circuits hold that an alien is "found in" the United States under section 1326 when the physical presence of the alien in the United States is discovered and when the identity and status of the previously deported alien is known by federal immigration authorities. See United States v. Zavala-Mendez, 411 F.3d 1116, 1119 (9th Cir.2005); United States v. Gomez, 38 F.3d 1031, 1035-36 (8th Cir.1994); United States v. DiSantillo, 615 F.2d 128, 137 (3d Cir.1980). Several circuits have also adopted a constructive knowledge analysis, elaborating that for a defendant to be "found," the government either must have known or, with the "exercise of diligence typical of law enforcement authorities," could have discovered the illegality of the defendant's presence. See United States v. Herrera-Ordones, 190 F.3d 504, 510-11 (7th Cir.1999); United States v. Bencomo-Castillo, 176 F.3d 1300, 1303 (10th Cir.1999); United States v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir.1996); United States v. Rivera-Ventura, 72 F.3d 277, 281-82 (2d Cir.1995); but see United States v. Uribe-Rios, 558 F.3d 347, 354 (4th Cir.2009) ("[T]he plain text of section 1326 does not support a theory of constructive knowledge. An alien violates 8 U.S.C. § 1326 when the alien `is at any time found in[] the United States'—not when the alien is `found or should have been found' in the country.").

a. Cases holding that immigration authorities had or should have known of defendant's illegal status.

Mendez relies only on United States v. Gunera, 479 F.3d 373 (5th Cir.2007) to support his argument that the immigration authorities in this case could have discovered his illegal presence before 2008, through the exercise of diligence typical of law enforcement authorities. In Gunera, the Fifth Circuit held that immigration authorities could reasonably be attributed with actual knowledge that the defendant was present illegally in the United States when a National Automated Immigration Lookout System ("NAILS") report identified him as having a prior deportation based on a conviction for an aggravated felony. 479 F.3d at 377. The defendant, Arturo Gunera, initially entered the United States illegally in 1990. Id. at 375. In 1991, he was convicted of possession of a controlled substance, and after serving six months of a three-year prison sentence, was released and deported to Honduras. Id. After a second removal a year later, he re-entered the United States in 1992. Id. On August 18, 1999, the defendant filed an application for Temporary Protected Status ("TP...