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UNITED STATES of America, Plaintiff-Appellee v. Carlos Eloy GARCIA-GARCIA, Defendant-Appellant
Carlos Eloy Garcia-Garcia appeals the 71-month within-guidelines sentence imposed for his conviction of illegal reentry in violation of 8 U.S.C. § 1326. He argues that the crime of illegal reentry is complete—and therefore applying the 2016 Guidelines in his case was an ex post facto violation—when immigration authorities have constructive knowledge of an alien’s illegal presence. In the district court, Garcia-Garcia admitted that he was deported and removed from the United States on or about July 27, 2010, and was found in Fort Worth, Texas, on or about March 8, 2017; he also claimed that he reentered the United States on an unknown date in 2010. The Government moves for summary affirmance and, alternatively, for an extension of time to file its brief.
In Peugh v. United States, 569 U.S. 530, 533, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013), the Supreme Court held that the Ex Post Facto Clause is violated where “a defendant is sentenced under Guidelines promulgated after he committed his criminal acts and the new version provides a higher applicable Guidelines sentencing range than the version in place at the time of the offense.” For ex post facto purposes, the relevant offense is Garcia-Garcia’s illegal reentry. “A § 1326 offense begins at the time the defendant illegally re-enters the country and does not become complete unless or until the defendant is found by [immigration authorities] in the United States.” United States v. Compian-Torres, 712 F.3d 203, 207 (5th Cir. 2013) (internal quotation marks and citation omitted); see also United States v. Santana-Castellano, 74 F.3d 593, 597-98 (5th Cir. 1996). For an alien to be “found in” the United States for purposes of § 1326, “(1) immigration authorities must have specifically discovered and noted the alien’s presence, and (2) knowledge of the illegality of the alien’s presence must be reasonably attributable to immigration authorities.” Compian-Torres, 712 F.3d at 207.
Garcia-Garcia does not argue on appeal that the facts of his case do not fall within the holding of Compian-Torres. Rather, he acknowledges that his argument is foreclosed under Compian-Torres, and he raises his argument to preserve the matter for further review. In light of the foregoing, the judgment of the district court is AFFIRMED. The Government’s motion for summary affirmance is GRANTED, and its alternative motion for an extension of time is DENIED as unnecessary.
FOOTNOTES
PER CURIAM:* FN* 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.
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Docket No: No. 18-11232
Decided: May 17, 2019
Court: United States Court of Appeals, Fifth Circuit.
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Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
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