2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-19-2007

USA v. Hernandez-Gonzalez

Precedential or Non-Precedential: Precedential

Docket No. 06-1998

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Recommended Citation

"USA v. Hernandez-Gonzalez" (2007). 2007 Decisions. Paper 651.

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*

 The Honorable A. Wallace Tashima, Senior Circuit Judge,

United States Court of Appeals for the Ninth Circuit, sitting by

designation. 

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

Nos. 06-1998 & 06-2130

 

UNITED STATES OF AMERICA,

 Appellant in Appeal No. 06-1998

v.

MAGDALENO HERNANDEZ-GONZALEZ,

 Appellant in Appeal No. 06-2130

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Criminal No. 05-cr-00507

District Judge: The Honorable Mary A. McLaughlin

 

Argued: May 23, 2007

 

Before: CHAGARES, HARDIMAN, and TASHIMA,* Circuit

Judges

(Opinion Filed July 19, 2007)

 
2

Richard J. Zack, Esq. (Argued)

Assistant United States Attorney

Office of United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Counsel for Appellant/Cross-Appellee United States

David L. McColgin, Esq. (Argued)

Assistant Federal Defender

Federal Community Defender Office

for the Eastern District of Pennsylvania

Suite 540 West - Curtis Center

601 Walnut Street

Philadelphia, PA 19106

Counsel for Appellee/Cross-Appellant Magdaleno HernandezGonzalez

 

OPINION OF THE COURT

 

TASHIMA, Circuit Judge.

The United States appeals the sentence imposed on

Magdaleno Hernandez-Gonzalez (“Hernandez”) following his

conviction under 8 U.S.C. § 1326(a) for being an alien found in the

United States following deportation. The question we must answer

is whether the date that the offense commenced, for purposes of

calculating the criminal history score, is the date that Hernandez

entered the United States, or the date that he was found in the

United States by immigration authorities. Relying on our decisions

in United States v. DiSantillo, 615 F.2d 128 (3d Cir. 1980), and

United States v. Lennon, 372 F.3d 535 (3d Cir. 2004), the district

court concluded that the relevant date was the date that Hernandez

was found by immigration authorities. We conclude that DiSantillo

and Lennon are distinguishable and hold that the date that the
1 Hernandez cross-appeals the district court’s refusal

to depart from the guideline range based on sentencing disparities

between districts with fast-track programs and districts without

them. Fast-track programs “allow defendants who violate § 1326

to receive lower sentences in exchange for waiving certain rights.”

United States v. Vargas, 477 F.3d 94, 98 n.8 (3d Cir.), reh’g

denied, 481 F.3d 868 (3d Cir. 2007). Hernandez’s argument is

foreclosed by Vargas, in which we held that “a district court’s

refusal to adjust a sentence to compensate for the absence of a fasttrack program does not make a sentence unreasonable.” Id. at 99.

3

offense commenced for purposes of calculating the criminal history

score is the date that Hernandez entered the United States. We

therefore vacate the sentence and remand for the district court to

determine the date of entry and resentence accordingly.1

 We have

jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

I.

Hernandez, a native and citizen of Mexico, legally entered

the United States in 1990 when he was 18 years old. From 1990 to

1992, Hernandez suffered five convictions – possession of bad

checks, driving under the influence, attempted grand theft, forgery,

and possession of forged notes. In 1994, Hernandez pled nolo

contendere to a charge of oral copulation by acting in concert with

force and was sentenced to eight years in state prison. On January

6, 1998, Hernandez was paroled to immigration authorities and

deported to Mexico.

Hernandez stayed in Mexico for approximately one year

before reentering the United States illegally. He lived with his

sister’s family, and then with his girlfriend, in Norristown,

Pennsylvania. In March 2005, police officers were called to

Hernandez’s residence following an altercation between Hernandez

and his girlfriend. Officers arrested Hernandez after they saw

cocaine in his pocket. Hernandez pled guilty to possession of

cocaine and, following his hearing on that charge, he was arrested

by immigration authorities. 

Hernandez was indicted on one count of being found in the
4

United States following deportation, in violation of 8 U.S.C. §§

1326(a) and (b)(2). He pled guilty, and a Presentence Investigation

Report (“PSR”) was prepared. 

A defendant’s criminal history is calculated pursuant to §

4A1.2 of the United States Sentencing Guidelines (“USSG”).

Section 4A1.2 provides, in pertinent part, that “[a]ny other prior

sentence that was imposed within ten years of the defendant's

commencement of the instant offense is counted” in the criminal

history score. USSG § 4A1.2(e)(2). The PSR relied on

Hernandez’s “confession to authorities that he immediately

returned to the United States after his deportation in 1998,” and his

statement that he had been living and working in Norristown for

approximately six years at the time of his PSR interview, to

conclude that the “criminal conduct in this case began at least as

early as January 1, 2000.” The PSR accordingly included in the

calculation of Hernandez’s criminal history score his convictions

that dated from 1990. Hernandez objected, arguing that the

effective date of the offense was August 15, 2005, because that was

the date the indictment charged he was found in the United States,

and that his convictions that occurred more than ten years before

this date should not be included in the calculation of his criminal

history score. The government argued that it was undisputed that

the latest Hernandez reentered the United States was January 1,

2000; therefore, that all of his convictions after January 1, 1990,

should be included in the calculation of his criminal history score.

The district court agreed with Hernandez that the relevant

question for determining the date of the offense was when he was

found by immigration authorities. The government informed the

court that immigration authorities first became aware that

Hernandez was in the country in May 2004, and he was sentenced

on the cocaine charge in August 2005. Relying on those dates, the

court concluded that Hernandez’s criminal history category was III,

resulting in a guideline range of 46 to 57 months. The court

sentenced Hernandez to a term of 46 months. This timely appeal

and cross-appeal followed.

II.
5

We review the district court’s interpretation of the guidelines

de novo. United States v. Navarro, 476 F.3d 188, 191 (3d Cir.

2007). The district court’s findings of fact are reviewed for clear

error. Id.

III.

The government contends that the district court erred in

concluding that Hernandez’s instant offense did not commence

until he was discovered by immigration authorities in May 2004.

If the district court had relied on the date the PSR estimated that

Hernandez reentered the United States, January 2000, to calculate

Hernandez’s criminal history, his five convictions between 1990

and 1992 would have been included in the criminal history

calculation.

“Section 1326(a) contains three separate offenses, phrased

in the disjunctive: (1) illegal re-entry, (2) attempted illegal reentry,

and (3) being found illegally in the United States.” Lennon, 372

F.3d at 537. Hernandez was convicted of the third offense, being

found in the United States. We considered the date of the “found

in” offense in DiSantillo and Lennon, but neither case addressed the

issue we face here. 

The question in DiSantillo was whether the statute of

limitations had run prior to the return of an indictment for illegal

reentry. The defendant, DiSantillo, was arrested and deported in

1962 when he was sixteen years old. He reentered the United

States in 1970 on an immigrant visa, but, because of the earlier

deportation, the government contended that his visa was improperly

obtained and, in 1979, prosecuted him for illegal reentry.

DiSantillo argued that the indictment was barred by the five-year

statute of limitations for § 1326, because the limitations period

began to run at the time he entered the United States in 1970. The

government countered that the limitations period began to run when

DiSantillo was found in the United States in 1976. We rejected the

government’s construction of the statute, reasoning that, “[u]nder

the government's formulation, violation of § 1326 is a continuing

offense effectively tolling the statute of limitations for as long as

the alien remains illegally in the country.” DiSantillo, 615 F.2d at

132.
6

We relied on the fact that DiSantillo reentered the United

States through an official port of entry, reasoning that Congress’

inclusion of the “found in” offense in the illegal entry statute

indicated its intent to create 

a distinction between surreptitious crossing of the United

States border and entry at a recognized INS port of entry. .

. . Congress must have included the word “found” in § 1326

to alleviate the difficult law enforcement burden of finding

and prosecuting this class of illegal aliens, who are already

aware that they are in violation of the law as evidenced by

their surreptitious entry, before the five year statute of

limitations runs.

Id. at 135. Because DiSantillo entered through an official port of

entry and filed a report with the INS every year, the government

had “sufficient opportunities to discover DiSantillo’s offense.” Id.

at 136. Reasoning that “[t]he critical event giving rise to this

prosecution and making the offense complete” was DiSantillo’s

1970 entry, we concluded that “the crime of illegal entry through

a recognized INS port of entry after being arrested and deported is

not a continuing offense.” Id. We therefore held that “an alien may

not be indicted under § 1326 more than five years after he entered

or attempted to enter the United States through an official INS port

of entry when the immigration authorities have a record of when he

entered or attempted to enter.” Id. at 137. 

The question in Lennon was when the offense of being

found in the United States was “committed” for purposes of

determining which Guidelines version was applicable. Lennon, the

defendant, was deported in 1993, and she illegally reentered the

United States in 1994, using a pseudonym. She was apprehended

by the INS in 2001 and pled guilty to being found in the United

States in violation of § 1326. Lennon argued that the 1994

guidelines, rather than the 2001 guidelines, should have been used

to calculate her sentence because her “found in” offense occurred

when she illegally entered the United States in 1994.

Although Lennon’s position seemed consistent with

DiSantillo, we distinguished DiSantillo on the basis that
7

[t]he logic of DiSantillo-that immigration authorities should

be imputed with “knowledge” of an alien's presence in the

United States-does not extend to a case such as this, where

Lennon affirmatively concealed her identity. To hold

otherwise would actually favor the illegal entrants who

affirmatively conceal their identities over those who

honestly use their own names.

Lennon, 372 F.3d at 541. Relying on this distinction, we concluded

that, “[w]here an alien unlawfully enters with a fictitious name,

even through a recognized port of entry, he is ‘found in’ the United

States when actually discovered.” Id. Lennon’s offense

accordingly was committed when she was apprehended in 2001.

Id.

In calculating Lennon’s criminal history score, the district

court had included “those of Lennon's offenses that occurred more

than ten years before her 2001 ‘found’ date-implicitly holding that

‘found in’ violations are continuing crimes.” Id. at 538. However,

the district court determined that the criminal history was

overstated and therefore reduced her criminal history category in

sentencing her.

Lennon raised the issue presented here, arguing that, if her

offense was committed in 2001, the district court should not have

considered her pre-1991 crimes in determining her sentence. We

did not reach the issue, reasoning that any error in considering

Lennon’s pre-1991 crimes in calculating her criminal history was

harmless because the district court based her sentence on the lower

criminal history category. Id. at 541-42.

We noted the merit of the government’s argument that being

found in the United States is a continuing offense, stating that “the

passage of time does not give rise to a de facto amnesty that

legalizes an unlawful alien's presence.” Id. at 541 n.8. We

recognized that the question was “addressed, to a limited extent,”

in DiSantillo and that numerous courts had held to the contrary of

DiSantillo, but declined to reexamine DiSantillo. Id.; see also id.

at 541 n.9 (noting the government’s argument that “there is no error

because Lennon’s offense was a continuing one, lasting from 1994

through 2001,” and stating that “[t]his is arguably inconsistent with
8

DiSantillo, but we need not reach the question”).

We conclude that both DiSantillo and Lennon are

distinguishable from the instant case and that neither case addressed

the issue presented here. First, we have interpreted DiSantillo’s

holding as being limited to the statute of limitations context where

immigration authorities were aware of the entry. See id. at 540

(stating that “DiSantillo held that illegal re-entry begins, for statute

of limitations purposes, when the alien presents himself

non-surreptitiously . . . at an open point of entry even though

immigration personnel failed to react”); see also United States v.

Dixon, 327 F.3d 257, 259 (3d Cir. 2003) (“In DiSantillo, we held

that being found in the United States is not a continuing offense

when the alien entered through a recognized port of entry, and

therefore the five-year statute of limitations begins to run when the

deported alien passed through the recognized port of entry.”).

DiSantillo itself limited its conclusion that the crime of illegal entry

was not a continuing offense to the situation where entry is

“through a recognized INS port of entry.” DiSantillo, 615 F.2d at

136.

Second, Lennon specifically declined to address the question

of whether the offense of being found in the United States was a

continuing offense where the reentry was not known to immigration

authorities. See Lennon, 372 F.3d at 541 n.8 (acknowledging that

numerous courts had held that the “found in” offense is a

continuing crime, but stating that “we need not confront the

continued viability of DiSantillo in this case”). To the contrary, we

reasoned in Lennon that the logic of DiSantillo does not apply

where the alien entered surreptitiously, by, for example, concealing

his or her identity, because “[t]o hold otherwise would actually

favor the illegal entrants who affirmatively conceal their identities

over those who honestly use their own names.” Id. at 541.

Unlike DiSantillo, Hernandez reentered the United States

surreptitiously. If his offense did not commence when he first

entered the United States, this would present the anomalous

situation of the alien committing the act of illegal entry, but then

being free of criminal liability until he or she commits the act of

being found in the country illegally. See id. at 541 n.8 (stating that

“the passage of time does not give rise to a de facto amnesty that
9

legalizes an unlawful alien’s presence”); United States v. LopezFlores, 275 F.3d 661, 663 (7th Cir. 2001) (“It would be passing odd

to say that Lopez had violated the statute when he entered but then

was free of further criminal culpability until he was discovered by

the INS.”). DiSantillo accordingly does not control this case.

Finally, although Lennon stated that, in the case of a

surreptitious reentry, the alien is “‘found in’ the United States when

actually discovered” by immigration authorities, Lennon, 372 F.3d

at 541, the relevant date for purposes of § 4A1.2(e)(2) is the

“commencement of the instant offense.” Lennon simply does not

address the date the offense is commenced. 

Section 4A1.2(e)(2) states that a prior sentence is to be

counted in the criminal history score if it was imposed within ten

years of the commencement of the instant offense. USSG §

4A1.2(e)(2). The Guideline commentary provides that, in

determining the applicable time period, “the term ‘commencement

of the instant offense’ includes any relevant conduct.” Id., cmt. n.8

(citing USSG § 1B1.3 (Relevant Conduct)). Section 1B1.3

includes as relevant conduct all acts “that occurred during the

commission of the offense of conviction, in preparation for that

offense, or in the course of attempting to avoid detection or

responsibility for that offense.” USSG § 1B1.3(a)(1). This

language indicates that the relevant conduct of entering the United

States should be considered in determining when the offense of

being found in the country was commenced. We therefore hold that

the date the offense of being “found in” the United States

commenced, for purposes of calculating the defendant’s criminal

history under § 4A1.2, is the date that the defendant entered the

United States, not the date that he or she was discovered by

immigration authorities. Our holding is in accord with decisions of

the Seventh and Eleventh Circuits that have addressed the precise

issue presented here. See Lopez-Flores, 275 F.3d 661; United

States v. Castrillon-Gonzalez, 77 F.3d 403 (11th Cir. 1996).

In Lopez-Flores, the defendant’s sentence for being found in

the United States was enhanced based on a previous conviction.

The indictment charged the defendant with being found in the

United States on November 7, 2000, which was more than ten years

after the prior conviction. However, the district court held that the
10

“found in” offense began when the defendant illegally reentered the

United States sometime before April 1999, which was within ten

years of the prior conviction. The Seventh Circuit stated:

All the courts to address the question have held that at least

in the case of surreptitious reentry, as in this case, the

“found in” offense is first committed at the time of the

reentry and continues to the time when the defendant is

arrested for the offense. This is clearly correct. Section

1326(a) punishes entering, attempting to enter, and being

found in the United States after being deported. We think

“found in” must have the force of “present in” rather than

“discovered by the INS to be in.” The date of discovery has

no significance so far as culpability is concerned, though it

may bear on the running of the statute of limitations. It

would be passing odd to say that Lopez had violated the

statute when he entered but then was free of further criminal

culpability until he was discovered by the INS.

Lopez-Flores, 275 F.3d at 663 (citations omitted). 

In Castrillon-Gonzalez, the defendant was arrested for being

found in the United States illegally in December 1993. However,

the date of his illegal entry into the United States was in February

1991. The issue was whether the district court properly enhanced

his sentence for a 1982 conviction, which was more than ten years

before his arrest for the “found in” charge, but less than ten years

before the date of his entry. The Eleventh Circuit reasoned that the

defendant had committed the offense of entering the United States

illegally in February 1991, even though that was not the offense

with which he was charged and to which he pled. CastrillonGonzalez, 77 F.3d at 406. The “found in” crime was commenced

by the illegal entry in February 1991, and it was not completed until

his December 1993 arrest. Id. The court recognized that “[t]he

distinction between completion and commencement is critical”

because § 4A1.2(e)(2) “counts any sentence imposed ‘within ten

years of the defendant’s commencement of the instant offense.’”

Id. (quoting USSG § 4A1.2(e)(2)). 

Section 4A1.2(e)(2)’s use of the term “commencement” and

its reliance on relevant conduct in determining the applicable time
11

period support our holding that the offense of being found in the

United States commences on the date the defendant enters the

United States. This interpretation also is consistent with cases that

hold that the date of the offense charged in the indictment is not

necessarily the relevant date for purposes of determining when the

charged offense was commenced in calculating criminal history

points. See, e.g., United States v. Rosenkrans, 236 F.3d 976, 978

(8th Cir. 2001) (holding that the district court properly assessed

criminal history points for a 1987 offense because the “instant

offense” for purposes of § 4A1.2(e)(2) was not limited to the 1998

transaction underlying the conviction but included earlier drug

transactions that were relevant conduct); United States v. Kennedy,

32 F.3d 876, 890 (4th Cir. 1994) (stating that “sentencing courts

may consider preindictment activity to establish the starting date of

the offense, and then use that date to calculate the time period for

which prior sentences are counted,” under § 4A1.2(e)(1)); United

States v. Kayfez, 957 F.2d 677, 678 (9th Cir. 1992) (per curiam)

(upholding the district court’s reliance on the date the defendant

made counterfeit notes, rather than the date the indictment charged

he possessed the notes, to assign criminal history points, stating that

the date alleged in the indictment is relevant only if the statute of

limitations is implicated or if the defendant shows prejudice in the

preparation of his defense by the listing of a specific date in the

indictment).

Our conclusion that Hernandez’s “found in” offense

commenced when he entered the United States, rather than when he

was found by immigration authorities, does not end the dispute.

Hernandez contends that the government has failed to prove that his

entry date is January 1, 2000, because of a statement in the PSR

that he visited his parents, who live in Mexico, after that date.

The only issue before the district court was the legal

question of whether the date of the commencement of the offense

was the date of entry or the date charged in the indictment. The

actual date of entry is a factual question that was not considered by

the district court. We therefore remand in order for the district
2 We affirm the district court’s refusal to depart from

the guideline range based on the district’s absence of a fast-track

program.

12

court to determine the date of entry and resentence accordingly.2

IV.

For the foregoing reasons, we will reverse the sentencing

order of the district court and remand for further proceedings

consistent with this opinion.