On appeal, Acevedo's principal argument is that his trial counsel was ineffective because he failed to raise a statute of limitations defense and to investigate adequately the facts and law relating to such a defense. Acevedo contends that his prosecution was time-barred under 18 U.S.C. §3282, because the indictment was filed more than five years after his reentry into the United States. Acevedo's ineffectiveness of counsel contention raises an issue not yet addressed by this Circuit: when the statute of limitations is triggered for the purposes of 8 U.S.C. §1326, where an illegal alien accomplishes reentry by providing an invalid green card and his real name to immigration authorities. Because we find that Acevedo's presentation of an invalid green card allowed him to achieve entry "by means of specious documentation that conceal[ed] the illegality of his presence," United States v. Rivera-Ventura, 72 F.3d 277, 281 (2d Cir. 1995), we hold that the statute of limitations was not triggered at the time he reentered the country, but rather at the time that he was "found in" the United States by immigration authorities. See id. at 282. We therefore conclude that the filing of the indictment approximately two-and-a-half years after Acevedo's discovery was timely. For this reason, trial counsel's alleged failure to raise or investigate further a statute of limitations defense could not have prejudiced Acevedo, and, therefore, his ineffective assistance claims on this ground fail. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (holding that a defendant must show actual prejudice to succeed on an ineffective assistance of counsel claim).
Acevedo raises numerous other arguments on appeal, including that: (1) the district court erred in denying his downward departure motions based on the government's delay in commencing prosecution and transferring him to federal custody, and based on the ground that he saved the life of another inmate; (2) the district court's application of the 1998 version of the United States Sentencing Guidelines Manual ("U.S.S.G." or "Guidelines") rather than the 1991 version in determining his adjusted offense level constituted an ex post facto violation; and (3) his trial counsel provided ineffective assistance by (a) failing to raise a downward departure claim based on Acevedo's alleged mistaken belief that his reentry was not a crime; and (b) neglecting to bring the commentary to § 5G1.3(c) of the 1994 Guidelines to the attention of the district court, which, Acevedo claims, might have rendered the district court more receptive to his downward departure motions. Because we find that each of these claims is also without merit, we affirm the judgment of the district court.
Acevedo, a native of the Dominican Republic, first entered the United States in January 1984. In October 1985, Acevedo pled guilty to manslaughter in New York Supreme Court, New York County, and was sentenced in December 1985 to a term of six to eighteen years' imprisonment. In November 1990, he was deported to the Dominican Republic in connection with the manslaughter conviction. Acevedo apparently failed to surrender his green card to the Immigration and Naturalization Service ("INS") upon deportation, although such surrender is routinely required. See United States v. Gay, 7 F.3d 200, 200-01 (11th Cir. 1993); United States v. Almonte, No. 98 Cr. 666 (JFK), 1998 WL 782023, at *2 (S.D.N.Y. Nov. 6, 1998); Aliens and Nationality, 8 C.F.R. § 246.
Jurisdiction: U.S. Court of Appeals, Second Circuit
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