US v. Nicolas Perez-Garcia

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:10-cr-00220-TDS-1. Copies to all parties and the district court/agency. [998768269]. [11-4395]

Appeal: 11-4395

Document: 29

Date Filed: 01/19/2012

Page: 1 of 5

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4395

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
NICOLAS PEREZ-GARCIA,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:10-cr-00220-TDS-1)

Submitted:

January 9, 2012

Decided:

January 19, 2012

Before NIEMEYER, AGEE, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Yvette M. Mastin, YVETTE M. MASTIN, P.C., Houston, Texas, for
Appellant. Ripley Rand, United States Attorney, Terri-Lei
O’Malley, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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Date Filed: 01/19/2012

Page: 2 of 5

PER CURIAM:
Nicolas Perez-Garcia appeals his conviction, pursuant
to a conditional guilty plea, of illegal reentry into the United
States, 18 U.S.C. § 1326 (2006).
applicable

five-year

Perez-Garcia contends that the

limitations

period,

18

U.S.C.

§ 3282

(2006), began to run in 2001 and had expired well before the
indictment was returned in 2010.

We affirm.

I
Perez-Garcia,

a

native

of

Mexico,

was

convicted

in

1989 of conspiracy to smuggle, transport, and harbor illegal
aliens and harboring illegal aliens.
in 1992.
Warrant

He was deported to Mexico

His fingerprints and signature were placed on the
of

(A-Number).

Removal,
He

and

reentered

he

was

the

assigned

United

an

States

in

Alien

Number

2001

without

inspection and without the permission of the Attorney General or
his successor, the Director of Homeland Security.
In

April

2001,

Perez-Garcia’s

sister,

Margarita

Garcia-Perez (Margarita), completed an I-130 Petition for Alien
Relative on behalf of Perez-Garcia.

The petition included some

accurate information about Perez-Garcia.

However, Margarita did

not answer a question concerning whether her brother had “ever
been under immigration proceedings,” and she responded “none” in
a box requesting the defendant’s A-Number.
2

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Document: 29

A

Date Filed: 01/19/2012

notation

on

the

I-130

Page: 3 of 5

petition

states

that

on

May 14, 2007, immigration officials completed a check of PerezGarcia on the Interagency Border Inspection System (IBIS).

An

internal memorandum, dated May 16, 2007, which noted his status
as

a

previously

deported

felon,

Registration File (A-File).

was

placed

in

his

Alien

On May 23, 2007, U.S. Citizenship

and Immigration Services (USCIS) approved the I-130 Petition,
meaning that Perez-Garcia was approved to apply for a change of
immigration status as a family member of a legal resident.

The

notation on the I-130 petition, the internal memorandum, and the
USCIS approval all contained Perez-Garcia’s assigned A-number.
Following Perez-Garcia’s arrest on state charges, an
Immigration
Asheboro,

and

North

Perez-Garcia’s

Customs

Enforcement

Carolina,

on

fingerprints

agent

June

1,

and

used

interviewed

2010.

The

them

him

agent

to

in

took

identify

Perez-Garcia as the alien who was convicted of an aggravated
felony, assigned an A-Number, and deported in 1992.
Perez-Garcia
illegal
(b)(2).

reentry

by

a

was

charged

convicted

on

June

28,

18

U.S.C.

felon,

2010,

with

§ 1326(a),

He moved to dismiss the indictment, claiming that the

prosecution was barred by the five-year statute of limitations
set

forth

limitations

in

18

period

U.S.C.
began

§ 3282(a).

He

contended

to

he

was

run

3

once

that

“found”

in

the
the

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Date Filed: 01/19/2012

Page: 4 of 5

United States, and that he was found here in 2001, when his
sister submitted the I-130 petition.
At

a

hearing

determined

that

the

authorities

were

on

aware

the

motion,

earliest
of

that

the

district

federal

Perez-Garcia’s

court

immigration

presence

in

this

country following his previous deportation was May 2007.

The

court rejected the defendant’s contention that the statute began
to run in 2001.

The court noted that the I-130 petition was

deceptive in two critical respects: Margarita responded “none”
to the question about her brother’s A-Number; and she failed to
answer

the

immigration

question,

“Has

proceedings?”

your

relative

Because

the

ever

indictment

been

under

was

filed

within five years of May 2007, the prosecution was not timebarred, and the court denied the motion to dismiss.
Perez-Garcia then entered a conditional guilty plea,
reserving the right to appeal the district court’s ruling on the
motion to

dismiss.

He

was

sentenced

to

fifty-four

months

in

limitations

period

to

prison.

II
Application

of

the

five-year

illegal reentry charges brought under § 1326 is a question of
law subject to de novo review.

United States v. Uribe-Rios, 558

F.3d 347, 351 (4th Cir. 2009).

We agree with the district court
4

Appeal: 11-4395

that

Document: 29

the

Date Filed: 01/19/2012

limitations

immigration

officials

period

began

Page: 5 of 5

discovered

to

run

in

May

Perez-Garcia’s

2007,

A-Number

learned that he was a previously deported felon.

when
and

We reject

Perez-Garcia’s contention that the period began to run in 2001,
when

his

sister

submitted

the

I-130

form.

That

form

deceptive for the reasons found by the district court.
this

highly

exercising

relevant
due

information,

diligence

could

law
not

enforcement
reasonably

was

Without
officials

have

been

expected, in 2001, to recognize that Perez-Garcia was the same
person who had been deported in 1992.

Perez-Garcia has not

proffered anything that would show otherwise.
We therefore hold that the limitations period began to
run in 2007.

The indictment, returned in 2010, was filed within

the applicable five-year period.

III
We accordingly affirm.

We dispense with oral argument

because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED

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