United States v. Osvaldo Compian-Torres
490 F. App'x 661
5th Cir.
2012
Check Treatment
Docket

UNITED STATES of America, Plaintiff-Appellee v. Osvaldo COMPIAN-TORRES, Defendant-Appellant.

No. 11-10921

United States Court of Appeals, Fifth Circuit.

Oct. 24, 2012.

496 F. Appx. 661

Nancy E. Larson, Assistant U.S. Attorney, U.S. Attorney’s Office, Northern District of Texas, Fort Worth, TX, for Plaintiff-Appellee.

Kevin Joel Page, Laura S. Harper, Esq., Assistant Federal Public Defender, Federal Public Defender’s Office, Dallas, TX, for Defendant-Appellant.

Before KING, CLEMENT, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Osvaldo Compian-Torres (Compian) was charged by indictment with being an alien found unlawfully present in the United States in August 2010 following a prior deportation. A jury convicted Compian, and the district court sentenced him to 109 months of imprisonment and a three-year term of supervised release. Compian filed a timely notice of appeal.

Compian concedes that he is an alien, that he had been deported in November 2003, that he reentered this country without permission, and that he was later found here. He explains that federal prosecutors discovered his presence in 2004 and had a then-active term of supervised release revoked. Upon revocation, Compian was incarcerated and then later released in 2006. Compian argues that he was “found” for purposes of 8 U.S.C. § 1326 in 2004 and that he thus could not have later been “found” in 2010 absent proof of a departure after 2004 and a new illegal reentry. Accordingly, he maintains that there was insufficient evidence to support his conviction.

Although Compian couches his argument in terms of sufficiency, his contention that he was “found” in 2004 raises a legal question. See

. His motion for a judgment of acquittal did not preserve this legal question. See
. Where a defendant raises a legal issue for the first time on appeal, this court reviews for plain error.
; see
. To show plain error, Compian must show a forfeited error that is clear or obvious and that affects his substantial rights. See
. If he makes such a showing, this court has the discretion to correct the error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.

Under this court’s precedent, Compian was not found illegally present in this country until 2010, when he was encountered by immigration officials who determined his illegal status. See

. For Compian to prevail on appeal, this court’s holding in
would have to be extended to include an alien’s discovery by federal officials other than immigration officials. Accordingly, he has not shown plain error.
.

AFFIRMED.

Joe Raymond FLORES, Plaintiff-Appellant, v. Kevin PRINCE, Physician Assistant-DMS Clinic for HCV; John C. Key, M.D., Joe Ney Unit; Debbie Iredell, Registered Nurse, HS Administrator Sanders Estes Unit; Avarian Mendez, Physician Assistant Garza East Transfer Facility; Guy Smith, Offender Grievance Officer; Correctional Managed Health Care Committee; Joint Utilization Review Committee; Joint Peer Committee, Defendants-Appellees.

No. 12-10318

United States Court of Appeals, Fifth Circuit.

Oct. 25, 2012.

496 F. Appx. 662

Joe Raymond Flores, San Antonio, TX, pro se.

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

Joe Raymond Flores, Texas prisoner # 1069315, has filed a motion for leave to proceed in forma pauperis (IFP) on appeal from the district court’s dismissal of his 42 U.S.C. § 1983 complaint. The district court denied his IFP motion and certified that the appeal was not taken in good faith. By moving for IFP status, Flores is

Notes

*
Pursuant to 5th Cir. R. 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 5th Cir. R. 47.5.4. Pursuant to 5th Cir. R. 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 5th Cir. R. 47.5.4.