NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 31 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 18-10202 Plaintiff-Appellee, D.C. No. 1:16-cr-00139-LJO-SKO-1 v. GUMESINDO MENDOZA-MORENO, MEMORANDUM* AKA Guminsindo Moreno-Mendoza, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of California Lawrence J. O'Neill, District Judge, Presiding Argued and Submitted May 15, 2019 San Francisco, California Before: McKEOWN and GOULD, Circuit Judges, and LASNIK,** District Judge. On September 1, 2016, Gumesindo Mendoza-Moreno was indicted on one count of being “found in” the United States in violation of 8 U.S.C. § 1326. Mendoza-Moreno moved to dismiss the indictment as barred by the statute of * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. limitations, and the district court denied the motion. Mendoza-Moreno pled guilty to the offense but reserved the right to appeal the district court’s denial of the motion to dismiss. That challenge is the subject of this appeal. We assume the parties’ familiarity with the facts and do not recite them here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. The statute of limitations for offenses under 8 U.S.C. § 1326 is 5 years. 18 U.S.C. § 3282. The statute of limitations begins to run when “an alien is discovered and identified by the immigration authorities.” United States v. Hernandez, 189 F.3d 785, 791 (9th Cir. 1999). The “found in” element has two prongs: (1) immigration officials must know of the defendant’s presence in the United States (presence), and (2) immigration officials must know that the defendant’s presence is unlawful (status). See United States v. Rivera-Ventura, 72 F.3d 277, 281–82 (2d Cir. 1995). The federal circuit courts of appeals are divided on whether the status prong of the “found in” analysis requires actual, or merely constructive, knowledge of the defendant’s unlawful presence. Compare United States v. Gomez, 38 F.3d 1031, 1036–37 (8th Cir. 1994), with United States v. Are, 498 F.3d 460, 462 (7th Cir. 2007). We have not yet decided the issue. Mendoza-Moreno urges us to join the majority of circuits to consider the issue and hold that the status prong of the “found in” element is met when immigration officials knew or, “with the exercise 2 of diligence typical of law enforcement authorities could have discovered, the illegality of [the defendant’s] presence.” Rivera-Ventura, 72 F.3d at 281–82; see also United States v. Clarke, 312 F.3d 1343, 1347–48 (11th Cir. 2002); United States v. Bencomo-Castillo, 176 F.3d 1300, 1303–04 (10th Cir. 1999); United States v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir. 1996); Gomez, 38 F.3d at 1035–37. We decline to weigh in on the circuit split because, under either test, the outcome in this case would be the same: Mendoza-Moreno cannot show that immigration officials actually knew or reasonably should ...
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Source: All recent Immigration Decisions In All the U.S. Courts of Appeals