* Pursuant to Local Rule 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 Local Rule

47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-40372

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DARIO VILLARREAL-BENAVIDES,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Texas

(B-95-CR-264-1)

February 27, 1997

Before POLITZ, Chief Judge, JONES and SMITH, Circuit Judges.

PER CURIAM: *

Dario Villarreal-Benavides appeals his conviction for illegal reentry into the

United States in violation of 8 U.S.C. § 1326. Finding no merit in his challenge to

the conviction we affirm.

Background

Villarreal-Benavides, a Mexican citizen, was convicted in 1987 in federal2

court of smuggling 1756 pounds of marihuana int o the United States. After a

hearing in 1991 the imm igration judge ordered his deportation to Mexico. The

ruling was appealed to the Board of Immigration Appeals. Pending the appeal he

was enlarged on bai l. In 1994 the BIA affirmed the deportation order. The

Immigration and Naturalization Servic e sent Villarreal-Benavides notice of the

final order and a letter demanding that he surrender for deportation. The INS sent

the documents by certified mail to his last known address, but they were returned

as undeliverable. The INS also sent a copy of the demand letter to the attorney who

had represented Villarreal-Benavides in the deportation proceedings. VillarrealBenavides failed to appear for deportation and was declared a fugitive.

On No vember 5, 1995 border patrol agents arrested Villarreal-Benavides

near the Mexican border just after he reentered the United States. He was indicted

and tried on on e count of illegal reentry under section 1326; the jury returned a

verdict of guilty. The trial judge sentenced Villarreal-Benavides to 63 months in

prison and three years of supervised release. He timely appealed.

Analysis

The sole contention on appeal is that the government failed to meet its

burden of proving that Villarreal-Benavides was “arrested” prior to his deportation,

which was one of the elements of the offense under the version of section 1326 in1 United States v. Quezada

, 754 F.2d 1190 (5th Cir. 1985) (citing United States v. Wong

Kim Bo , 466 F.2d 1298 (5th Cir. 1972)).

2 8 U.S.C. § 1305.

3 effect at the time of the indictment. An “arrest” is accomplished for section 1326

purposes when the INS serves a warrant of deportation upon the alien. 1 VillarrealBenavid es contends that merely mailing the warrant of deportation to his last

known address was insufficient to satisfy the arrest requirement.

On the record before us we find no merit in Villarreal-Benavides’s challenge

to the validity o f his conviction. The record reflects that he changed his address

while on bail without notifying the INS as required by law. 2 The INS made diligent

efforts to serve a wa rrant of deportation after the BIA affirmed the deportation

order. A copy was mailed to his last known address and a copy was mailed to the

a ttorney who represented him in the deportation proceedings. If VillarrealBenavides had complied with the statutory requirement of keeping the INS advised

of his current address during the period of his enlargement on bail, the “arrest”

requirement on the deportation order would have been accomplished. His failure

to comply with this mandatory statutory requirement cannot serve as a defense to

the charge of violating 8 U.S.C. § 1326.

The conviction is AFFIRMED.