F I L E D

United States Court of Appeals

Tenth Circuit

MAY 13 1999

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

ARTURO BENCOMO-CASTILLO,

also known as Rigoberto CastilloMarquez, also known as Juan CastelloSotelo,

Defendant-Appellant.

No. 98-2126

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. CR-97-397-LH)

Jerry A. Walz, Walz & Associates, Albuquerque, New Mexico, for the DefendantAppellant.

Laura Fashing, Special Assistant United States Attorney (John J. Kelly, United

States Attorney, with her on the brief), Office of the United States Attorney,

Albuquerque, New Mexico, for the Plaintiff-Appellee.

Before KELLY, McKAY, and HENRY, Circuit Judges.

KELLY, Circuit Judge.

Defendant-Appellant Arturo Bencomo-Castillo pled guilty to an indictment
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charging that he entered, attempted to enter, or was at any time found in the

United States without the Attorney General’s consent after having been deported,

in violation of 8 U.S.C. § 1326. Mr. Bencomo-Castillo had previously been

convicted of theft warranting at least one year’s imprisonment – an offense

considered an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(G), as of

September 30, 1996. In his earlier motion to quash the indictment, which was

denied, he challenged the government’s ability to charge him with being an

aggravated felon under § 1326(b)(2), claiming he was “found” in the United

States before this date. Although he had an offense level of twenty-one with a

criminal history category V, the parties entered a plea agreement, providing that

the offense level would be seventeen and Mr. Bencomo-Castillo could argue, at

sentencing, that he had a prior felony conviction under § 1326(b)(1), rather than

an aggravated felony conviction under §1326(b)(2). The plea agreement also

preserved this issue for appeal. After holding an evidentiary hearing on

applicability of § 1326(b)(2), the court determined Mr. Bencomo-Castillo’s

sentence with reference to USSG § 2L1.2(b)(1)(A), which provides a sixteenlevel enhancement if the deportation occurred subsequent to an aggravated felony

conviction as defined by § 1101(a)(43)(G). He was sentenced to fifty-two

months’ imprisonment and three years’ supervised release. 

According to Mr. Bencomo-Castillo, the court incorrectly construed §§
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1326(a)(2) & (b)(2) in calculating the enhancement because he was arrested in

Albuquerque, New Mexico, on March 23, 1996 – after his deportation but before

the amended definition of an aggravated felony in § 1101(a)(43)(G) took effect. 

He contends that the INS had constructive knowledge of his presence in the

United States that spring; thus, he was “found” before September 30, 1996 and his

prior theft should not have been deemed an aggravated felony for sentencing

purposes. We exercise jurisdiction under 28 U.S.C. §§ 1291 and 18 U.S.C. §

3742(a) and affirm.

Background

The parties agree that Mr. Bencomo-Castillo was deported on November

30, 1995, after being convicted in state court of unlawfully taking a motor

vehicle, for which he received an eighteen-month sentence. According to the

undisputed facts, he reentered the United States and was arrested in Albuquerque

on March 23, 1996. Mr. Bencomo-Castillo gave the police an alias, “Arturo

Marquez-Castillo” – one of more than thirty false names he used during his

criminal activities. See 4 R. at 63. He spent that Saturday night in the Bernalillo

County Detention Center and was released the following day. Because the INS

does not perform jail checks on weekends, his deportation status was not

discovered. However, the Albuquerque Police Department took his fingerprints
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and, on May 15, 1996, submitted them to the FBI. The fingerprints were not

processed until March 11, 1997. 

Defense counsel asserts that an earlier arrest on February 29, 1996, was

discovered after the district court ruled on Mr. Bencomo-Castillo’s motion to

quash the indictment. The parties do not agree on whether the police took his

fingerprints during the February 1996 arrest. Yet, they do agree that Mr.

Becomo-Castillo was arrested again on February 27, 1997, and that on June 5,

1997, while he was still in custody, an INS agent identified him as a previously

deported alien.

Discussion

If the district court’s application of the sentencing guidelines involves a

question of law, we review de novo. See United States v. Tagore, 158 F.3d 1124,

1127 (10th Cir. 1998). We review its factual findings for clear error. See id.

This case presents an issue of first impression in the Tenth Circuit: whether an

alien arrested under an alias and not discovered to be a prior deportee has been

“found” within the meaning of § 1326. Section 1326 applies to any previously

deported alien who “enters, attempts to enter, or is at any time found in, the

United States” without the Attorney General’s consent. § 1326(a)(2) (emphasis

added). Section 1326(b)(2) authorizes not more than twenty years’ imprisonment
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for an alien described in § 1326(a) “whose removal was subsequent to a

conviction for commission of an aggravated felony.” The meaning of the word

“found” in § 1326 thus lies at the heart of this case.

In United States v. Meraz-Valeta, 26 F.3d 992, 997 (10th Cir. 1994), we

adopted the Second Circuit’s view that the “found in” language of § 1326(a) is

synonymous with “discovered in.” Id. (citing United States v. Whittaker, 999

F.2d 38, 42 (2d Cir. 1993)); see also United States v. Gomez, 38 F.3d 1031, 1036

(8th Cir. 1994) (noting that this is the prevailing interpretation). In Whittaker, the

Second Circuit stated that an alien who gave an alias upon reentering the United

States at an official checkpoint had not been “found” because:

His documentation, although containing his photograph, used a

fictitious name. There was, thus, no way the INS could have

identified him as a previously deported alien at the time of his

reentry. That is the precise situation Congress sought to cover when,

in 1972, it amended the Statute to cover aliens who were found in the

United States following their illegal entry.

Whittaker, 999 F.2d at 42. Other circuits have agreed that, for an alien to be

“found,” the government must have “knowledge of the illegality of his presence,

through the exercise of diligence typical of law enforcement authorities.” United

States v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir. 1996); see United States

v. Rivera-Ventura, 72 F.3d 277, 281-82 (2d Cir. 1995).

Although the government lacked actual knowledge that Mr. BencomoCastillo was a previously deported alien before June 5, 1997, he contends that the
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INS had constructive knowledge in the spring of 1996. First, he asserts, it was

unreasonable for the INS not to perform weekend jail checks. Second, he charges

the FBI with negligence in failing to process his fingerprints for almost a year. 

Neither the plain language of the statute nor the relevant case law suggests

that the “found in” element of § 1326(a) requires the government to exercise

more than reasonable diligence in screening for previously deported aliens. See

Santana-Castellano, 74 F.3d at 598. Mr. Bencomo-Castillo cites Gomez for the

proposition that the INS and the FBI negligently failed to discover his status from

his fingerprints; yet, Gomez does not govern the outcome of his case. In

attempting to determine whether a § 1326 indictment was brought within the

applicable statute of limitations, the Gomez court suggested but did not hold that

the government negligently failed to find an alien. See Gomez, 38 F.3d at 1038. 

Even if the Eighth Circuit had established a threshold for reasonable diligence in

Gomez, we would not be bound by it. See Abeyta v. Chama Valley Indep. Sch.

Dist., 77 F.3d 1253, 1257 (10th Cir. 1996). Many of the other cases that Mr.

Bencomo-Castillo cites deal with the irrelevant issue of whether an alien must

evade an official checkpoint in order to be “found,” rather than merely entering

the United States. See, e.g., United States v. DiSantillo, 615 F.2d 128, 137 (3d

Cir. 1980).

In the instant case, the government had neither constructive nor actual
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knowledge of Mr. Bencomo-Castillo’s prior deportation until after September 30,

1996. INS agents only perform jail checks Monday through Friday and are not

required to research the criminal history of persons who have been released from

custody. See 4 R. at 32. Even if an INS agent had performed a weekend jail

check on or around March 23, 1996, he probably would not have discovered Mr.

Bencomo-Castillo’s status because Mr. Bencomo-Castillo used an alias. See id. at

11. Agents cannot discover information about an alien giving a false name unless

they check multiple computer indexes, including the Deportable Alien Control

System (“DACS”) and the National Crime Information Center (“NCIC”). See id.

at 11, 23, 24. These systems are not checked during a routine screening unless

the officer recognizes an alien as a prior deportee. See id. at 12, 20. Moreover,

if the alien uses a new alias, the NCIC will not yield any information about him. 

See id. at 49. Based on such evidence, the district court did not clearly err in

finding that the INS did not identify Mr. Bencomo-Castillo as a deported alien

before June 5, 1997. We also hold that INS agents had no legal duty under §

1326 to conduct a more exhaustive investigation of his criminal history.

Finally, Mr. Bencomo-Castillo charges the government with negligence due

to its delay in processing his fingerprints. If the FBI had checked the prints in the

usual forty-five to ninety days, see id. at 30, Mr. Bencomo-Castillo asserts, he

would have been “found” before September 30, 1996. Instead, it took almost a
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year to process them. However, even if the FBI had contacted the INS in ninety

days, Mr. Bencomo-Castillo still would not have been “found” because the INS

no longer knew his whereabouts. Although the government must exercise

“diligence typical of law enforcement authorities” to find prior deportees,

Santana-Castellano, 74 F.3d at 598, we decline to second-guess the FBI’s

priorities in processing suspects’ fingerprints. Accordingly, we hold that Mr.

Bencomo-Castillo was not “found” in the United States until June 1997, after the

amended definition of aggravated felony took effect, and the district court

properly enhanced his sentence.

AFFIRMED.