U.S. v. Uribe-Rios

• Decision Date: 04 March 2009
• Docket Number: No. 07-4803.,07-4803.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fausto URIBE-RIOS, a/k/a Francisco Medina, a/k/a Efrain Gomez Gonzalez, a/k/a Francisco Uribe-Rios, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

558 F.3d 347

UNITED STATES of America, Plaintiff-Appellee, v. Fausto URIBE-RIOS, a/k/a Francisco Medina, a/k/a Efrain Gomez Gonzalez, a/k/a Francisco Uribe-Rios, Defendant-Appellant.

No. 07-4803.

United States Court of Appeals, Fourth Circuit.

Argued: October 30, 2008.

Decided: March 4, 2009.

ARGUED:

Ann Loraine Hester, Federal Defenders of Western North Carolina, Inc., Charlotte, North Carolina, for Appellant. Adam Christopher Morris, Office of the United States Attorney, Charlotte, North Carolina, for Appellee.

ON BRIEF:

Claire J. Rauscher, Executive Director, Steven Slawinski, Federal Defenders of Western North Carolina, Inc., Charlotte, North Carolina, for Appellant. Gretchen C.F. Shappert, United States Attorney, Charlotte, North Carolina, for Appellee.

Before GREGORY and DUNCAN, Circuit Judges, and RICHARD D. BENNETT, United States District Judge for the District of Maryland, sitting by designation.

Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Judge GREGORY and Judge BENNETT concurred.

OPINION

DUNCAN, Circuit Judge:

Appellant, Fausto Miguel Uribe-Rios, appeals his conviction and sentence under 8 U.S.C. § 1326 for being "found in" the United States without the permission of the Attorney General after having previously been deported for an aggravated felony. Appellant reentered the United States under an alias and was later arrested and convicted by North Carolina authorities for drug trafficking. Upon his release from state prison after a five-year sentence, Appellant was interviewed by federal immigration authorities. During that interview, Appellant revealed his real identity and unauthorized presence in the United States. Eight days later, Appellant was indicted under section 1326. Appellant moved to dismiss the indictment on statute of limitations, venue, and pre-indictment delay grounds. After the district court denied the motion, Appellant pleaded guilty and was sentenced. On appeal, Appellant raises the same arguments and also challenges his sentence on Fifth and Sixth Amendment grounds. For the reasons set forth below, we affirm.

I.

Appellant Fausto Miguel Uribe-Rios, a citizen of Mexico, has been deported from the United States on at least five separate occasions in ten years, at least once after having been convicted of an aggravated felony. He unlawfully reentered the United States in 1997 and was subsequently arrested by North Carolina law enforcement officials for drug trafficking in August 2000.

The record shows that Appellant used over thirty aliases during his time in the United States, including, but not limited to, "Francisco Rios Medina," "Francisco Uribe-Rios," "Efrain Gomez-Gonzalez," "Jose Antonio Bautista Cobos," "Victor Gomez-Gomez," "Adolfo Rios Medina," "Ruben Hureverios," and "Paco Gomez." J.A. 175. Following his arrest in 2000, he was prosecuted under the name "Francisco Rios Medina" in Wake County, which is located in the Eastern District of North Carolina. On January 26, 2001, following a trial in North Carolina state court, he was sentenced to six years in state prison.

Although Appellant was initially incarcerated in a facility located in the Eastern District of North Carolina, in December 2004 he was transferred to a different facility located in the Western District of North Carolina where he served the remainder of his state prison term. Before the transfer occurred, federal immigration authorities placed a detainer¹ on Appellant under the name "Francisco MEDINA-Rios." The detainer, dated May 28, 2004, advised North Carolina officials that an "[i]nvestigation ha[d] been initiated to determine whether this person is subject to removal from the United States." S.A. 1.²

Upon his release from state prison in the Western District of North Carolina on September 21, 2006, Appellant was immediately taken into custody by the United States Bureau of Immigration and Customs Enforcement ("ICE"). In an interview with ICE agents conducted that same day, Appellant stated that his real name was Fausto Miguel Uribe-Rios, he had previously used the alias "Francisco Rios Medina," he had previously been deported, and he had not applied to the Attorney General for permission to reenter the United States. Appellant reiterated these statements in a sworn affidavit. J.A. 52-53. ICE agents processed Appellant's fingerprints at that time, discovering deportation orders and warrants under Appellant's true name, Fausto Miguel Uribe-Rios, as well as under the aliases "Francisco Uribe-Rios" and "Efrain Gomez-Gonzalez." It is undisputed that the federal government did not have actual knowledge of Appellant's presence in this country under his correct name until this time.

Appellant was indicted in the Western District of North Carolina on September 29, 2006, under 8 U.S.C. § 1326 for being "found in" the United States without the permission of the Attorney General after having previously been deported for an aggravated felony.³ Section 1326 provides in pertinent part:

(a) In general ... any alien who—

(1) has been ... removed or has departed the United States ... and thereafter

(2) enters, attempts to enter, or is at any time found in, the United States, unless ... the Attorney General has expressly consented ...

shall be fined under Title 18, or imprisoned not more than 2 years, or both.

(b) Criminal penalties for reentry of certain removed aliens—Notwithstanding subsection (a) ...

(2) [Any alien] 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.

8 U.S.C. § 1326.

In the district court, Appellant moved to dismiss the indictment, arguing that the applicable statute of limitations had run, that venue was improper, and that he was prejudiced by pre-indictment delay. The district court rejected Appellant's arguments and denied the motions to dismiss the indictment. United States v. Uribo-Rios, No. 3:06cr395, 2006 WL 3751323, at *4 (W.D.N.C. Dec. 19, 2006).⁴ Appellant pleaded guilty without entering a plea agreement and was sentenced to 70 months imprisonment with three years of supervised release.

Appellant timely appealed his conviction, raising the same statute of limitations, venue, and pre-indictment delay claims raised in the district court below. He also raised a new claim that his sentencing violated his rights under the Fifth and Sixth Amendments because he was sentenced based on past convictions that were neither admitted by him nor proven to a jury beyond a reasonable doubt.

II.

We have jurisdiction under 28 U.S.C. § 1291. Appellant's arguments turn on questions of law, which we review de novo. United States v. Woolfolk, 399 F.3d 590, 594 (4th Cir.2005). We address Appellant's arguments in turn.

III.

The parties do not dispute that the applicable statute of limitations is five years.⁵ Appellant argues that the statute of limitations began running on January 26, 2001, when he "entered the custody of the State of North Carolina." Appellant's Br. at 15. He contends that "[a]t that point, he had been `found' by authorities as required to establish a violation of 8 U.S.C. § 1326." Id. He notes that at or by this date, he had given his name as "Miguel Uribe-Rios" in state court and had testified in that forum as to his illegal status in the United States. He further emphasizes that "he was in the exclusive control of government authorities" and had been fingerprinted. Id. at 15, 18.

To support his statute of limitations argument, Appellant relies heavily on United States v. Gomez, 38 F.3d 1031 (8th Cir. 1994), which concerned an illegal alien who had been deported under the alias "Rodrigo Rojas Gomez," but whose real name was "Javier Dario Gomez." When Gomez was deported as "Rodrigo Rojas Gomez," the INS file under that name contained a social security number and fingerprints. Gomez reentered the United States surreptitiously and presented himself at an INS Legalization Office to apply for temporary resident status. In the application, he provided his real name, his fingerprints, and the false social security number connected with the alias "Rodrigo Rojas Gomez." The INS granted him temporary resident alien status, which was later adjusted to permanent resident alien status. When Gomez was arrested several years later in connection with a jewelry theft, an FBI and INS fingerprint analysis revealed that Javier Dario Gomez and Rodrigo Rojas Gomez were the same person. Five years and four days after Gomez had initially presented himself to the INS Legalization Office, the INS filed an indictment charging Gomez with violating 8 U.S.C. § 1326. Under these circumstances, the Gomez court found that the five-year limitations period had expired by the time the indictment was filed, noting that federal immigration authorities had "possesse[d] all the necessary information [to determine Gomez's identity and illegal status], but negligently fail[ed] to act upon it for over five years." Id. at 1037. The Gomez court held that "the statute of limitations for a `found in' violation should ... begin running when immigration authorities could have, through the exercise of diligence typical of law enforcement authorities, discovered the violation." Id. at 1037.

In addition to Gomez, Appellant cites cases from the Second, Fifth, and Tenth Circuits for the proposition that "for an alien to be `found,' the government must have `knowledge of the illegality of his presence, through the exercise of diligence typical of law enforcement authorities.'" United States v. Bencomo-Castillo, 176 F.3d 1300, 1303 (10th Cir.1999) (quoting United States v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir.1996); citing Rivera-Ventura, 72 F.3d at 282-82). Appellant argues that in his case, "had governmental authorities used reasonable diligence, they would have `found'" him at the time he was incarcerated in state prison. Appellant's Br. at 18. He points out that ...