United States v. Jesus Ramirez-Nunez

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 5, 2019
• Docket: 18-50060
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 5 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50060

Plaintiff-Appellee, D.C. No. 5:15-cr-00018-JGB-1 v.

JESUS ANTONIO RAMIREZ-NUNEZ, MEMORANDUM* AKA Antonio Ramirez, AKA Jesus Antonio Ramirez,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding

Argued and Submitted March 5, 2019 Pasadena, California

Before: COLE, Chief Judge,** and FISHER and NGUYEN, Circuit Judges.

Jesus Ramirez-Nunez appeals his conviction and sentence for illegal reentry

in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Ransey Guy Cole, Jr., Chief Judge, United States Court of Appeals for the Sixth Circuit, sitting by designation. we affirm in part, vacate in part and remand.

1. The district court properly denied Ramirez-Nunez’s motion to dismiss the

indictment as untimely. The statute of limitations begins to run when an offense is

completed, and an offense under the “found in” prong of § 1326 is completed when

the government knows of both a person’s presence in the country and his status –

the fact that his presence is illegal. See United States v. Zamudio, 787 F.3d 961,

966-67 (9th Cir. 2015). We have not yet decided “whether such discovery and

identification must be based on the government’s actual knowledge or can instead

be proven under a constructive knowledge theory.” Id. at 966. We need not

decide that question here.

Under either standard, the statute of limitations did not begin to run when

Ramirez-Nunez crossed the border. Ramirez-Nunez does not argue the

government was actually aware of his status at that time. Although he contends the

government had constructive knowledge because border patrol was not reasonably

diligent when it questioned him upon entry, a failure to exercise diligence by itself

does not establish constructive knowledge, and Ramirez-Nunez’s contentions that

further questioning could have led to discovery of his status are speculative. See

United States v. Zavala-Mendez, 411 F.3d 1116, 1120 n.20 (9th Cir. 2005).

Ramirez-Nunez never argued that he would have responded truthfully to questions

about his status, and the record does not say what further questions a reasonable

2 officer might have asked that would have revealed his status.

Because we reject Ramirez-Nunez’s argument on this ground, any

evidentiary errors supporting the district court’s decision were harmless. See Fed.

R. Crim. P. 52(a).

2. The government concedes that three of Ramirez-Nunez’s supervised-

release conditions – conditions 5, 6 and 14 – are unconstitutionally vague under

United States v. Evans, 883 F.3d 1154, 1162-64 (9th Cir. 2018). We vacate these

conditions and remand for the district court to modify them in light of Evans.

3. The government concedes that the district court’s reference to 8 U.S.C. §

1326(b)(2) in the judgment is inconsistent with United States v. Rivera-Sanchez,

222 F.3d 1057, 1061-62 (9th Cir. 2000). We vacate the judgment and remand for

the district court to enter a corrected judgment striking this reference.

AFFIRMED IN PART; VACATED IN PART; AND REMANDED.