In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-1714

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CARL GORDON,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 06 CR 334—Ronald A. Guzman, Judge.

____________

ARGUED NOVEMBER 30, 2007—DECIDED JANUARY 16, 2008

____________

Before BAUER, RIPPLE, and KANNE, Circuit Judges.

BAUER, Circuit Judge. Defendant-Appellant Carl

Gordon is a citizen of Belize who lawfully entered the

United States in 1974. Gordon obtained permanent

resident status and was issued a “green card.” Ten years

later, Gordon committed a series of home invasion robberies, targeting elderly women alone in their homes. In

March of 1985, a Cook County grand jury indicted

Gordon on multiple charges, including home invasion,

residential burglary, armed robbery, robbery, aggravated

battery, and theft. Gordon was found guilty of several of

these charges and was sentenced to concurrent ten and

seven year terms in the custody of the Illinois Department

of Corrections. On January 3, 1990, Gordon was deported
2 No. 07-1714

based on those convictions. Before he was deported, an

immigration judge explained to Gordon that he no

longer was a legal permanent resident and provided him

with an I-294 form, which explained that he needed

permission from the Attorney General to return to the

United States.

Gordon returned to the United States in November of

1995 without obtaining permission from the Attorney

General. The exact date of Gordon’s return is uncertain,

but on appeal, Gordon asserts that it was sometime during November of 1995. Gordon reentered via Mexico at

the San Ysidro, California border checkpoint. At that

checkpoint, Gordon presented his green card—which was

still in his possession despite his deportation—to the

Immigration and Customs Enforcement agent and was

allowed to reenter the United States.

On October 12, 2000, Gordon was again arrested on

charges of home invasion and armed robbery of an elderly

woman. On August 8, 2001, he was convicted of these

crimes in Illinois state court and sentenced to twelve

years’ imprisonment. On August 10, 2001, Gordon entered

the custody of the Illinois Department of Corrections to

begin serving his sentence. Standard custodial procedures should have alerted the government to Gordon’s

unlawful presence at this time, but standard procedures,

for some unknown reason, were not followed in this case.

On April 21, 2006, Gordon was interviewed by an

Immigration and Customs Enforcement agent, and he

admitted to the agent that he had illegally reentered

the United States by presenting his authentic but

invalid green card to the inspector at the border. With

this green card, Gordon falsely represented that he was

a lawful permanent resident of the United States.

On May 9, 2006, Gordon was indicted on charges of

being a deported alien illegally present and found in the
No. 07-1714 3

United States without the express consent of the Attorney General, in violation of 8 U.S.C. §§ 1326(a) and

1326(b)(2). This offense has a five-year statute of limitations period from the time the offense is complete. On

June 27, 2006, Gordon moved to dismiss the indictment

arguing that the prosecution was time-barred. Gordon

argued that the government had constructive knowledge

of his illegal presence in the United States as of the

moment he crossed the border at San Ysidro and, through

the exercise of due diligence, the government should have

discovered his crime. Although charged with being “present and found” in the United States, Gordon asserted

that this offense was not a continuing one in light of his

entry through an official port of entry and the use of his

real name, date of birth, and alien identification number,

and thus his reentry was not surreptitious. Therefore,

Gordon argued, his offense was complete for statute of

limitations purposes at the time of his successful reentry.

Gordon also claims that he did not know his reentry was

illegal because the I-294 form that he received upon his

removal was confusing and he thought he was allowed

to return after five years.

The government responded that Gordon’s reentry was

surreptitious because the presentation of an invalid green

card concealed the illegality of his presence from the

border authorities exercising normal diligence. And,

because his reentry was surreptitious, the government

argued, the statute of limitations did not begin to run

until the government “actually discovered” Gordon’s

illegal presence in the United States. The government

pointed out that requiring the border authorities to do a

background check on everyone seeking to cross the border,

even when they present an authentic immigration document, places an unreasonable burden on border personnel. Gordon responded that the border authorities have

computers at their stations for precisely that reason, and
4 No. 07-1714

insisted that background checks on everyone crossing

the border is not too burdensome.

On August 3, 2006, the district court denied Gordon’s

motion, finding that the government could not be expected

to run a background check on every person requesting

permission to enter the United States, especially when he

or she presents authentic immigration documents. The

court held that the government did not have actual or

constructive knowledge of Gordon’s illegal reentry at the

time he crossed the border, and therefore the indictment was not time-barred. On November 14, 2006,

Gordon entered a conditional guilty plea, preserving his

right to appeal the district court’s denial of his motion

to dismiss the indictment.

At the sentencing hearing, the district court concluded

that Gordon’s offense level was twenty-one and his criminal history score was nine, which placed him in criminal

history category four. This provided for an advisory

guidelines range of fifty-seven to seventy-one months’

imprisonment. The district court then heard arguments

from both parties before sentencing Gordon.

Gordon argued for a sentence below the advisory guidelines range. He explained that when he was deported, he

was told by immigration officials that he would be

denied reentry for five years; after that, it was Gordon’s

understanding that he would be allowed to return by

showing his green card to immigration officials. He

claimed that his risk of recidivism and any threat he

posed to the public in the future was significantly diminished because he would not return to the United States

now that he knew he could not do so legally (without the

permission of the Attorney General). In support of his

arguments, Gordon presented a copy of the I-294 form that

he says was the source of his sincere—albeit incorrect—belief that he could return to the United States
No. 07-1714 5

after five years. He also emphasized the fact that he

reentered the United States at an official port of entry

and used his real identity, which was evidence of his

sincere misunderstanding of the restrictions on his

reentry. He said that he did not know his green card

was invalid, despite his deportation in 1990.

The government argued for a sentence of 120 months’

imprisonment, asserting that the guidelines range was

“woefully inadequate” because Gordon preyed on vulnerable and defenseless elderly women, and that Gordon’s

prior deportation for similar crimes had done nothing

to deter him from returning and claiming another

elderly victim. Moreover, the government contended that

Gordon’s criminal history score under-represented the

seriousness of his criminal history, and urged the

district court for an upward departure to 120 months on

the basis that such a sentence was necessary to protect

the public from Gordon. This argument was based on the

fact that seven of Gordon’s prior convictions had been

consolidated for sentencing, which resulted in him receiving two fewer points for his criminal history score. The

government requested the guidelines range of seventy

to eight-seven months’ imprisonment, which would have

been the guidelines range had Gordon’s prior convictions

not been consolidated. The government further argued

that it could not prevent Gordon from returning to the

United States and continuing his “signature offense” on

society’s elderly women.

Gordon responded that his prior crimes had adequately

been accounted for and that his criminal history score

did not under-represent the magnitude of his criminal

history. Gordon also contended that the government’s

requested 120 months sentence was arbitrary, as it was

not linked to any specific guideline. In a final comment to

the court, Gordon apologized for returning to the United

States, and again stated that he would not return in the

future.
6 No. 07-1714

The district court rejected Gordon’s claim that he did not

know that he could not return to the United States without

permission and that his green card was no longer valid.

The district judge believed that Gordon was being intentionally deceitful when he presented his green card to

immigration officials at the border, as “logic and common

sense” dictated that one’s permanent resident status

(which a green card represents) is revoked when one is

deported. Acknowledging Gordon’s extensive contacts

with the United States and lack of contacts with his

native Belize, the district judge also discredited Gordon’s

promise not to return to the United States again. Noting

Gordon’s criminal inclinations, the district judge said he

was not persuaded that Gordon would not reenter the

United States, despite now knowing it was a federal crime

to do so.

At that point, Gordon requested a sentence of thirty

months’ imprisonment on the basis that the delay in his

prosecution had deprived him of the opportunity for a

concurrent sentence, and that the government’s requested sentence of 120 months would result in a sentence four times the national average for illegal reentry

sentences and approximately twice what his advisory

guidelines range yielded. The district judge rejected

Gordon’s request. He reasoned that, after considering the

Presentencing Report, the sentencing memoranda submitted by both parties, and the arguments raised, he

was very concerned that Gordon had targeted society’s

most vulnerable citizens numerous times (even after

deportation for the same types of crimes), had completely

disregarded the laws of the United States, and was

likely to return to the United States again and continue

committing his signature offense. The district judge

concluded that he “need[ed] to protect the public,” and

that the guidelines calculation under-represented the

impact of Gordon’s criminal history and the danger to the
No. 07-1714 7

community that he posed. The district judge sentenced

Gordon to ninety-six months’ imprisonment.

Gordon’s first argument on appeal is that the district

court erred when it held that the five-year statute of

limitations for Gordon’s illegal reentry offense was not

triggered until Gordon was taken into custody by the

Illinois Department of Corrections in 2001. Gordon contends that immigration officials had constructive knowledge of Gordon’s illegal presence in the United States in

November of 1995 and thus, the five-year statute of

limitations for the crime of illegal reentry began to run at

the time of his actual return to the United States. Shortly

after the filing of Gordon’s opening brief, this Court

explicitly rejected Gordon’s proposed constructive knowledge standard for statute of limitations purposes on illegal

reentry crimes in United States v. Are, 498 F.3d 460 (7th

Cir. 2007). As a result, Gordon argued in his reply brief

that Are was wrongly decided and should be overturned.

We review de novo whether the limitations period has

run, giving deference to necessary factual determinations

by the district court. United States v. Barnes, 230 F.3d 311,

314 (7th Cir. 2000). We will not reject the district court’s

factual findings unless they are clearly erroneous.

Hernandez v. New York, 500 U.S. 352, 365-66 (1991);

United States v. Greve, 490 F.3d 566, 570 (7th Cir. 2007).

The statute of limitations for noncapital offenses provides that “no person shall be prosecuted, tried, or punished for any offense . . . unless the indictment is found . . .

within five years next after such offense shall have

been committed.” 18 U.S.C. § 3282(a). Federal prosecution for illegal reentry, a noncapital offense, is subject to a

five-year limitations period. See United States v. Clarke,

312 F.3d 1343, 1346 (11th Cir. 2002); see generally Are, 498

F.3d 460 (applying a five-year statute of limitations to a

§ 1326(a) violation). Generally, an offense is “committed”
8 No. 07-1714

when each element of the offense has occurred. Toussie v.

United States, 397 U.S. 112, 115 (1970); United States v.

Yashar, 166 F.3d 873, 875 (7th Cir. 1999). The offense of

illegal reentry pursuant to 8 U.S.C. § 1326(a)(2) is committed in any of three ways: when the deported alien (1)

enters the United States; (2) attempts to enter the United

States; or (3) is at any time found in the United States.

United States v. Herrero-Ordones, 190 F.3d 504, 509 (7th

Cir. 1999).

An alien commits the offense of being “found in” the

United States if he enters via a surreptitious border

crossing or “enters through a recognized port by means of

specious documentation that conceals the illegality of his

presence.” United States v. Acevedo, 229 F.3d 350, 355 (2d

Cir.) (internal quotations omitted), cert. denied, 531 U.S.

1027 (2000); see United States v. Lopez-Flores, 275 F.3d

661, 663 (7th Cir. 2001) (explaining that, in the case of

surreptitious reentry, the “found in” offense is first

committed at the time of reentry). A deportee who

reenters the United States by presenting an invalid green

card but uses his real name still deceives immigration

officials as to the legality of his presence, and therefore

enters surreptitiously. Acevedo, 229 F.3d at 355.

Gordon first contends that his entry was not surreptitious. We disagree. Gordon entered through a recognized

port by means of an authentic but invalid green card that

concealed the illegality of his return to the United States.

Gordon also claims that he did not know that his green

card was no longer valid despite having been deported.

The district court found this assertion to be unbelievable.

Absent clear error here, we accept the district court’s

conclusion that this assertion was not credible. See Greve,

490 F.3d at 570; see also United States v. Jones, 21 F.3d

165, 168 (7th Cir. 1994) (“It is well-established that the

district court’s factual findings and credibility deter-
No. 07-1714 9

minations are reviewed for clear error.”). Accepting the

district court’s finding that Gordon knew that his green

card was invalid, Gordon’s presentation of that green

card, combined with his non-disclosure of his prior deportation to the immigration officials at his reentry, does

more than merely suggest that his reentry into the United

States was surreptitious. Gordon sought to deceive immigration officials (and did so successfully) as to his legal

status in this country upon his reentry in November

of 1995.

Gordon argues that Are was wrongly decided, because

unlike the other Courts of Appeal, this Court has taken

the burden off of the government entirely by explicitly

rejecting a constructive knowledge standard. Contrary to

our sister circuits, we held in Are that when the government “should have discovered” a deportee’s illegal presence

in the United States is irrelevant to when the statute of

limitations begins to run on the deportee’s § 1326(a)

offense. Compare Are, 498 F.3d at 466 (constructive

knowledge is irrelevant to statute of limitations determination), with United States v. Rivera-Ventura, 72 F.3d 277,

281-82 (2d Cir. 1995) (the statute of limitations begins

when “the authorities know, or with the exercise of

diligence typical of law enforcement authorities, could

have discovered the illegality of his presence”), United

States v. Lennon, 372 F.3d 535, 541 (3d Cir. 2004)

(“[I]llegal re-entry begins, for statute of limitations

purposes, when the alien presents himself non-surreptitiously (i.e. using his own name) at an open point of entry

even though immigration personnel failed to react.”),

United States v. Santana-Castellano, 74 F.3d 593, 598 (5th

Cir. 1996) (statute of limitations starts when alien is

“found,” but barring circumstances that suggest that

immigration officials should have known of deportee’s

presence earlier), United States v. Gomez, 38 F.3d 1031,

1037 (8th Cir. 1994) (statute of limitations begins when
10 No. 07-1714

immigration could have discovered the violation, using

diligence typical of law enforcement authorities), and

Clarke, 312 F.3d at 1347-48 (11th Cir.) (statute of limitations starts when federal government could have discovered through reasonable diligence that deportee was

illegally present in the United States). Gordon asserts

that under Are, the government is allowed to “ignore

all signs of an alien’s presence in the United States

until it decide[s] it want[s] to prosecute him.”

The flip-side of Gordon’s argument, however, is that

so long as an alien hides well for five years after giving

the government a mere sniff of his presence, he cannot

be prosecuted. While blatant flight from justice may

toll the statute of limitations, we need not provide an

incentive to illegal aliens to subtly fly under the government’s radar. We believe this to be a compelling reason not

to join our sister circuits on this issue. See Mid-America

Tablewares, Inc. v. Mogi Trading Co., Ltd., 100 F.3d 1353,

1364 (7th Cir. 1996) (reiterating the importance of stare

decisis). Although Gordon makes some valid arguments

challenging the reasoning of Are, we do not find them

compelling enough to overrule Circuit precedent. Thus, we

decline to reconsider or overturn Are.

In Are, this Court held that, for statute of limitations

purposes, “[t]o be ‘found in’ the United States without

permission after deportation means to be ‘present in’ the

United States without permission after deportation; the

immigration agency’s ‘discovery’ of the alien (whether

actual or constructive) is not an element of the offense.”

498 F.3d at 466 (emphasis in original). Being “found in”

the United States at any time is a continuing offense. Id.

at 464; United States v. Rodriguez-Rodriguez, 453 F.3d

458, 460-61 (7th Cir. 2006) (citing United States v. Cores,

356 U.S. 405, 408 (1958)). Hence, “a deportee who has

reentered surreptitiously prolongs his illegal presence in
No. 07-1714 11

the United States each day he goes undetected.” Are, 460

F.3d at 466 (citing Rodriguez-Rodriguez, 453 F.3d at 460).

“The limitations clock does not run during this period

because the deportee’s crime continues; he remains

illegally ‘present in’ the United States.” Id. “[B]ecause the

‘found in’ version of § 1326(a)(2) is a continuing offense,

the date on which the immigration agency ‘should have

discovered’ the alien is simply irrelevant.” Id. Under Are,

the limitations period in an illegal reentry case begins

to run, at the earliest, when the immigration authorities

actually discover the illegal alien’s presence, identity

and status. Id. at 466-67. At the latest, it begins to run

when the alien turns himself in or is arrested. Id.

Both the date of the government’s actual discovery of

Are’s illegal presence in the United States, as well as

his arrest for violating § 1326(a)(2) were within five

years of the date of his indictment for that offense. See

Are, 460 F.3d at 467. Therefore, the facts of the Are case

did not require the Court to commit itself to a single

operative date on which the statute of limitations clock

began to run. In the case now before us, we again need not

assign a single operative date. Because we find that

Gordon’s entry was surreptitious, the government necessarily did not have actual knowledge of his illegal status

upon reentry in November of 1995. Gordon managed to fly

under the government’s radar until October 12, 2000, when

he was arrested for yet another home invasion and

armed robbery of an elderly woman. He was convicted on

August 8, 2001, and entered the custody of the Illinois

Department of Corrections on August 10, 2001. It was not

until an April 21, 2006 interview of Gordon by an immigration agent that the government gained actual

knowledge of Gordon’s illegal presence. Because Gordon

was already in custody, there was no date of arrest for

his illegal reentry offense.
12 No. 07-1714

The government concedes that it would have gained

knowledge of Gordon’s illegal presence on August 10, 2001

had standard procedures been followed, and thereby

accepts August 10, 2001 to be the operative date that

triggered the statute of limitations. However, under Are,

constructive knowledge is irrelevant. 498 F.3d at 466.

Despite a failure to follow standard procedures that

would have resulted in actual knowledge, the federal

government did not have actual knowledge of Gordon’s

illegal presence until April 21, 2006. See, e.g., Clarke, 312

F.3d at 1348 (state officials’ knowledge of defendant’s

illegal presence cannot be imputed to federal immigration

officials); United States v. Mercedes, 287 F.3d 47, 55 (2d

Cir. 2002) (same). We point out, however, that even if

we were to use the constructive knowledge date of

August 10, 2001, Gordon’s indictment would still be timely.

Under the standard set forth in Are, the only possible

date from which the statute of limitations could begin to

run is April 21, 2006, the date of the federal government’s

actual discovery of Gordon’s illegal presence. Therefore,

Gordon’s May 9, 2006 indictment was timely, and the

district court properly denied his motion to dismiss the

indictment.

Gordon also argues on appeal that his sentence of ninetysix months’ imprisonment was unreasonable. Gordon’s

1990 removal was subsequent to an aggregated felony

conviction, therefore Gordon was subject to the harsher

criminal penalties of fines, imprisonment of not more than

twenty years, or both. 8 U.S.C. § 1326(b)(2). Gordon points

out that the sentence was twenty-five months above the

high end of his advisory guidelines range, and argues that

the district court failed to provide a sufficient explanation

for the upward departure.

We review a sentence under an abuse of discretion

standard, regardless of whether the sentence is inside or
No. 07-1714 13

outside of the Sentencing Guidelines range. Gall v. United

States, 552 U.S. ___, 128 S.Ct. 586, 597 (2007). We begin

by ensuring that the district court did not commit any

significant procedural error, “such as failing to calculate

(or improperly calculating) the Guidelines range, treating

the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the

chosen sentence—including an explanation for any deviation from the Guidelines range.” Id. If we find the district court’s sentencing decision to be procedurally sound,

we then consider the substantive reasonableness of the

sentence under an abuse of discretion standard. Id.

In sentences outside of the Guidelines range, we must

consider the extent of the deviation from the Guidelines

range, but we must also give due deference to the district court’s determination that the § 3553(a) factors,

when taken as a whole, justified the extent of the variance.

Gall, 552 U.S. ___, 128 S.Ct. at 597. Variances from

the Guidelines should be explained and supported with

compelling justifications for such deviations. United

States v. Wachowiak, 496 F.3d 747, 749-50 (7th Cir.

2007). The fact that we “might reasonably have concluded

that a different sentence was appropriate is insufficient

to justify reversal of the district court.” Gall, 552 U.S. ___,

128 S.Ct. at 597. We acknowledge that: “The sentencing

judge is in a superior position to find facts and judge

their import under § 3553(a) in the individual case. The

judge sees and hears the evidence, makes credibility

determinations, has full knowledge of the facts and

gains insights not conveyed by the record.” Id. at ___, 128

S.Ct. at 597 (internal quotation omitted). Because the

district court has greater familiarity with the case and

individual defendant, and because it has an “institutional

advantage over appellate courts in making these sorts

of determinations” (in light of their frequency), we defer,
14 No. 07-1714

absent an abuse of discretion, to its ruling. Id. (quoting

Koon v. United States, 518 U.S. 81, 98 (1996)).

Gordon first argues that his sentence is unreasonable

because it rests upon a clearly erroneous factual finding

that Gordon knew it was illegal to return to the United

States. Gordon contends that the district court did not

credit any of Gordon’s testimony or evidence, thereby

ignoring a crucial mitigating factor. As noted above,

absent clear error, we defer to the district court’s determination regarding Gordon’s lack of credibility on this

point. Furthermore, the district court did in fact consider

the evidence, namely, the I-294 form that Gordon presented as the alleged source of his confusion regarding

the legality of his return, in its opinion regarding

Gordon’s motion to dismiss. Again, we find no problem

with the factual conclusion that, when read in its entirety,

the I-294 form made it clear to Gordon that he was not

allowed to return to the United States without permission.

At sentencing, the judge again stated his disbelief that,

after going through deportation proceedings in which his

permanent resident status was revoked, Gordon could have

possibly believed his green card—a memorialization of

permanent resident status—was somehow still valid.

Gordon also asserts that his sentence is unreasonable

because the district judge failed to articulate anything

unique or compelling about Gordon or his criminal history

that would justify a sentence so high above the advisory

guidelines range. We disagree. At the sentencing hearing,

the district judge distinguished Gordon from the hundreds

of thousands of other illegal aliens that enter the United

States each day who come here to work and support

their families. See Koon, 518 U.S. at 113 (“It has been

uniform and constant in the federal judicial tradition

for the sentencing judge to consider every convicted person as an individual and every case as a unique study

in the human failings that sometimes mitigate, sometimes
No. 07-1714 15

magnify, the crime and the punishment to ensue.”).

Instead, as the district judge noted, Gordon came here

to commit crimes and take advantage of the most vulnerable people who cannot defend themselves. The district judge explained that it did not believe Gordon

would not return to the United States, despite his

promise not to, because his entire family is here, he has

nothing in Belize, he has stated that he was miserable

in Belize, and based on his prior actions, the illegality of

his return to the United States is of no concern to him.

The district judge was also convinced that Gordon would

again prey on the vulnerable members of society and

would use implied or actual violence. These considerations

appropriately related to the nature, circumstances,

and seriousness of the offenses and to the need for just

punishment, adequate deterrence, and the protection of

the public. See 18 U.S.C. § 3553(a)(1), (a)(2)(A)(C); see

also United States v. King, 506 F.3d 532, 536-37 (7th Cir.

2007) (holding that a sentence thirty-four months above

the top of defendant’s advisory guidelines range was

reasonable); United States v. Walker, 447 F.3d 999, 1008

(7th Cir. 2006) (holding that a sentence thirty months

above the top of defendant’s advisory guidelines range

was reasonable). The district court’s explanation was

sufficient reasoning for the variance from the guidelines

range; it was not required to explain each day, week,

or month above the guidelines range it imposed. See

Wachowiak, 496 F.3d at 750 (holding that, if “the sentence chosen is within the broad range of objectively

reasonable sentences in the circumstances, the sentence

will be affirmed.”); United States v. Vitrano, 495 F.3d 387,

390-91 (7th Cir. 2007) (explaining that, post-Booker,

the fact that a district court departs from the advisory

guidelines is not the issue; the issue is whether the

sentence imposed is reasonable). We therefore find

that the district court did not abuse its discretion in
16 No. 07-1714

1 The decision in United States v. Are, 498 U.S. 460 (7th Cir.

2007), relies in significant part on our previous decision in United

States v. Rodriguez-Rodriguez, 453 F.3d 458, 461 (7th Cir. 2005)

for the proposition that we ought not recognize constructive

notice. Rodriguez-Rodriguez was not directly on point, but, to

the extent that it can be said to have lighted the way for the

panel in Are, I note that Rodriguez-Rodriguez also apparently

(continued...)

sentencing Gordon above his advisory guidelines range,

and his sentence was reasonable.

For the foregoing reasons, we AFFIRM the district court’s

denial of Gordon’s motion to dismiss and Gordon’s sentence.

RIPPLE, Circuit Judge, concurring. I join the judgment

of the court and that part of its opinion that holds that

the imposed sentence is a reasonable one.

With respect to the statute of limitations issue, I agree

that, if United States v. Are, 498 F.3d 460 (7th Cir. 2007),

is the governing precedent, the timeliness issue in this

case can be decided on its authority. As my colleagues

note, however, Are set this circuit on a path different

from all the other circuits that have addressed this

issue. As far as I have been able to ascertain, it did so

without affording the entire membership of the court an

opportunity to participate in the decision-making process. See Circuit Rule 40(e). Consequently, I have a serious

doubt as to whether Are is a viable precedent upon

which to predicate today’s decision.1
No. 07-1714 17

1 (...continued)

was never circulated to the entire court under Circuit Rule 40(e),

even though, according to the Are panel, it was establishing

a conflict among the circuits and disapproving dicta in United

States v. Herrera-Ordones, 190 F.3d 504 (7th Cir. 1999), that

had assumed that the view of the other circuits was correct.

USCA-02-C-0072—1-16-08

Despite these misgivings about the legitimacy of the

precedent upon which it relies, I join in the judgment of

the court because I do not believe that the Government

can be charged with constructive notice when Mr. Gordon

presented himself at the border with an invalid, although

authentic, green card. Indeed, it seems to me that his

actions at that point can be characterized as affirmatively

misleading the Government. The Government should not

be charged with constructive knowledge of this surreptitious entry, even though it occurred at an official border

checkpoint.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit