United States of America v. JESUS ANTONIO RAMIREZ-NUNEZ, AKA Antonio Ramirez, AKA Jesus Antonio Ramirez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JESUS ANTONIO RAMIREZ-NUNEZ,
AKA Antonio Ramirez, AKA Jesus Antonio
Ramirez,
Defendant-Appellant.
No. 18-50060
D.C. No.
5:15-cr-00018-JGB-1
MEMORANDUM*
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.
FILED
APR 5 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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

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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.

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