USA v. Luis Orozco-Jaramillo

Filing

UNPUBLISHED OPINION FILED. [17-40087 Affirmed ] Judge: WED , Judge: EBC , Judge: GJC Mandate pull date is 10/10/2017 for Appellant Luis Ricardo Orozco-Jaramillo; denying motion for summary affirmance filed by Appellee USA [8514634-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8514634-3]; granting motion to remand case filed by Appellee USA [8514634-4] [17-40087]

Case: 17-40087

Document: 00514160271

Page: 1

Date Filed: 09/18/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-40087
Summary Calendar

United States Court of Appeals
Fif h Circuit

FILED
September 18, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LUIS RICARDO OROZCO-JARAMILLO,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:16-CR-18-1
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *

Luis Ricardo Orozco-Jaramillo appeals his conviction for illegal reentry,
in violation of 8 U.S.C. § 1326. His sole argument on appeal is that this court
should remand to the district court on a limited basis to correct the judgment
regarding the date the offense ended. Specifically, Orozco-Jaramillo asserts
that the offense ended when he was encountered by U.S. Customs & Border
Protection (CBP) on September 13, 2015, but the written judgment reflects

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

Case: 17-40087

Document: 00514160271

Page: 2

Date Filed: 09/18/2017

No. 17-40087
that his offense ended on December 16, 2015. The Government agrees that
this court should remand for the limited purpose of correction of the error
under Federal Rule of Criminal Procedure 36 and otherwise moves for
summary affirmance.

In the alternative, the Government requests an

extension of time to file a merits brief.
Summary affirmance is proper where, among other instances, “the
position of one of the parties is clearly right as a matter of law so that there
can be no substantial question as to the outcome of the case.” Groendyke
Transp., Inc. v. Davis, 406 F.2d 1158, 1161 (5th Cir. 1969). In the context of a
§ 1326 violation, “a previously deported alien who reenters and remains in the
United States[] commits a continuing offense until he is found.” United States
v. Reyes-Nava, 169 F.3d 278, 280 (5th Cir. 1999) (internal citation omitted).
An alien is “found” when U.S. “immigration authorities have: (1) actual
knowledge of the alien’s physical presence, and (2) actual or constructive
knowledge that the alien’s presence is illegal.” See United States v. RamirezSalazar, 819 F.3d 256, 258 (5th Cir. 2016) (internal citations omitted).
The record supports that CBP knew of Orozco-Jaramillo’s illegal
presence on September 13, 2015, at which point his § 1326 offense ended. See
Ramirez-Salazar, 819 F.3d at 258; Reyes-Nava, 169 F.3d at 280. Given that
neither party has cited a case that specifically involves a Rule 36 correction
regarding the end date of an offense, summary affirmance is inappropriate.
Nevertheless, as the record supports that the written judgment lists an
erroneous end date of the offense, a limited remand is warranted.
Therefore, the motion for summary affirmance is DENIED and a limited
remand is GRANTED for the purpose of correcting the written judgment.
Because we dispense with further briefing, the alternate motion for an
extension of time is DENIED. The judgment is otherwise AFFIRMED.

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