1 IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 95-20189

(Summary Calendar)

__________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ZEFERINO SANTANA-CASTELLANO,

Defendant-Appellant.

_______________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_______________________________________________

January 25, 1996

Before JOLLY, JONES, and STEWART, Circuit Judges.

STEWART, Circuit Judge:

Santana-Castellano (Santana) pled guilty to being found unlawfully in the United States on

June 7, 1994, after having been deported, in violation of 8 U.S.C. §1326. Because he had previously

been convicted of committing an aggravated felony, he was sentenced to 62 months confinement and

to a three-year term of supervised release, sentence to be served consecutive to the sentence he was

already serving at the Texas Department of Crimina l Just ice fo r injury to a child. He appeals his

sentence, ar guing that the district court erred in applying sentencing guidelines §§4A1.1(d) and

5G1.3(a) whic h added t wo criminal history points and imposed a consecutive sentence. For the

following reasons, we AFFIRM.1 (a) Subject to subsection (b), any alien who --

(1) has been arrested and deported or excluded and deported, and thereafter

(2) enters, attem

pts to enter, or is at any time found in , the United States, unless

(A) prior to his reembarkation at a place outside the United States or his

application for admission from foreign contiguous territory, the Attorney General

has expressly consented to such alien’s reapplying for admission; . . .

Shall be fined under title 18, United States Code, or imprisoned not more than 2 years

or both.

(b) not withstanding subsection (a), in the case of any alien described in such

subsection --

(1) whose deportation was subsequent to a conviction for commission of three or

more misdemeanors involving drugs, crimes against the person, or both, or a felony

(other than an aggravated felony), such alien shall be fined under title 18, United

States Code, imprisoned not more than 10 years, or both; or

(2) whose deportation was subsequent to a conviction for commission of an

aggravated felony, such alien shall be fined under such title, imprisoned not more

than 20 years, or both. (emphasis added)

2 FACTS

In June of 1980, Santana was convicted of importing approximately 70 pounds of marijuana

into the United States, an aggravated felony as defined by the Immigration A ct. 8 U.S.C. §1101

(43)(B). He was depo rt ed in 1987. In August of 1992, he was again deported after illegally

reentering. Then, in April of the following year, he was arrested in the United States for the offense

of injury to a child. He was convicted of that offense in Texas state court, and sentenced to five years

confinement at TDCJ. While serving his state sentence at TDCJ, Santana was interviewed by an

agent of the Immigration and Naturalization Service (“INS”) who was looking for inmates who were

“suspected aliens.” Santana admitted that he had previously been deported. The INS agent verified

that Santana had been deported after being convicted of a federal drug offense and charged him with

violation of 8 U.S.C. §1326 which dictates that it is a crime for an alien who has been arrested and

deported to be “at any time found in” the United States. 1

The presentence report (PSR) recommended a total offense level of 21 and a criminal history

category of IV, resulting in a guideline range of 52 to 71 months. The criminal history category was

based on eight crimi nal hist o ry points, including two points under U.S.S.G. §4A1.1(d) for having

committed the offense of reentering while unde r a st at e sentence of imprisonment. The PSR also2 U.S.S.G. §4A1.1(d) provides for a two point enhancement of the criminal history category if

the defendant committed the instant offense while under any criminal justice sentence.

3 U.S.S.G. §5G1.3(a) provides that “if the instant offense was committed while the defendant

was serving a term of imprisonment ... the sentence for the instant offense shall be

imposed to run consecutively to the undischarged term of imprisonment.”

Subsection (b) provides that “if subsection (a) does not apply, and the undischarged term of

imprisonment resulted from offense(s) that have been fully taken into account in the determination

of the offense level for the instant offense, the sentence for the instant offense shall be imposed to

run concurrently to the undischarged term of imprisonment.”

Subsection (c) provides that “in any other case, the sentence for the instant offense shall be

imposed to run consecutively to the prior undischarged term of imprisonment to the extent

necessary to achieve a reasonable incremental punishment for the instant offense.”

3 recommended that Santana’s federal sentence be imposed pursuant to §5G1.3(c), which dictates that

a consecutive sentence be imposed to the extent necessary to achieve a reasonable inc remental

punishment.

At sentencing, Santana

argued that the two-point criminal history enhancement under

§4A1.1(d) was inapplicable because he was not under a state sentence when he illegally reentered the

United States. 2 The district court fo und t hat §4A1.1(d) applied because Santana was “found”

unlawfully in the United States while he was serving a state prison sentence.

The district court also ordered that Santana’s federal sentence would be consecutive to his

state sentence pursuant to §5G1.3(a). U.S.S.G.§5G1.3(a) requires a consecutive sentence, while

§5G1.3(c) allows the ju dge so me discretion in determining how much of a sentence shall be

consecutive. 3 Santana filed a timely no t ice o f appeal, claiming that the two point criminal history

enhancement should not hav e been applied because he committed the criminal reentry prior to his

prosecution and sentence for injury to a child, not during his incarceration in state prison. He also

argues that §5G1.3(a) is inapplicabl e because he was not serving a term of imprisonment when he

crossed the border.

DISCUSSION

A sentence will be upheld on review unless it was “imposed in violation of law; imposed as

a result of an incorrect application of the sentencing guidelines; or outside the range of the applicable4

sentencing guideline and is unreasonable.” U nited States v. Garcia

, 962 F.2d 479, 480-81 (5th Cir.),

cert. denied

, __U.S.

__, 113 S. Ct. 293, 121 L.Ed. 2d 217 (1992). Applications of the guidelines are

reviewed de novo

. United States v. Bryant , 991 F.2d 171, 177 (5th Cir. 1993).

In order to decide whether §5G1.3(a) and 4A1.1(d) were co rrect ly applied, we must first

consider when exactly Santana committed the §1326 offense of “being found in” the United States:

when he was found in TDCJ or when he entered illegally. Santana argues that the district court erred

in finding that his offense of illegal reentry was an offense which continued until he was found by INS

agents.

The clear language in 8 U.S.C. §1326(a)(2) provides three separate occasions upon which a

deported alien may commit the offense: 1) when he illegally enters the United States: 2) when he

attem pts to illegally enter the United States; or 3) when he is at any time found in the United States.

United States v. Gonzales

, 988 F.2d 16, 18 (5th Cir.), cert. denied

, __ U.S. __, 114 S. Ct. 170, 126

L.Ed. 2d 129 (1993). This court has held that the guidelines in effect at the time the deported alien

is found are the appropriate source for determining a sentence because of the “found in” language in

§1326(a)(2). G onzales

, 988 F.2d at 18, accord United States v. Rodriguez , 26 F.3d 4, 8 (1st Cir.

1994).

Likewise, the five year statute of limitations under §1326 begins to run at the time the alien

is “found,” barring circumstances that suggest that the INS should have known of his presence earlier,

such as when he reentered the United States through an official border checkpoint in the good faith

belief that his entry was legal. U nited States v. Gomez 38 F.3d 1031, 1035 (8th Cir., 1994); accord

United States v. DiSantillo , 615 F.2d 128, 132 (3d Cir. 1980).

The purpose of the “found in” provision is to provide punishment for an alien who, following

his deportati on

... and without the permission of the Attorney General... having reentered r emains

illegally in this country until his presence is discovered. U nited States v. Whittaker

, 999 F.2d 38, 41

(2d Cir. 1993). This provision prohibits deported aliens, who have illegally reentered the United

States, from remaining in the co untry. U nited States v. Ortiz-Villegas

, 49 F.3d 1435, 1436 (9th5

Cir.), cert. denied , __ U.S. __, 116 S. Ct. 134 (1995).

Santana argues that the district court adopted a “hyperliteral interpretation” of the ‘found in’

language when it held that he continued to commit the crime of illegal reentry after he was arrested

and imprisoned for the state offense, and that it erred in finding that his offense of illegal reentry was

an offense which continued until he was found by INS agents, citing DiSantillo for the premise that

a §1326 violation is not a “continuing” offense. After all, his act of entering the United States

occurred at a certain point in time; it did not continue as would a convicted felon’s possession of a

firearm. See United States v. Maxim

, 55 F.3d 394, 397 (8th Cir.), cert. denied , __U.S. __, 116 S.

Ct. 265 (1995). Moreover, he certainly could not leave the United States while incarcerated in the

TDCJ.

Nevertheless, Santana’s argument is unavailing. “A continuing offense is a continuous,

unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force,

however long a time it may occupy.” U nited States v. Midstate Horticultural Co

., 306 U.S. 161, 166,

59 S. Ct. 412, 414, 83 L. Ed. 563 (1939)(citations omitted). In line with this definition, both illegal

possession of firearms and ongoing child po rnography have been found to be continuing offenses.

Maxim , 55 F.3d at 397.

Santana attem

pts to distingu ish his situation, arguing that in D iSant illo

, the Third Circuit

applied continuing offense analysis to §1326 and held that being “found in” the United States is not

a continuing offense. The facts of that case are easily distinguishable from the situation in the case

at bar. DiSantillo entered the country at a United States immigration service port of entry with a visa

issued by the Department of State, and was unaware that his entry was illegal. D iSant illo

, 615 F.2d

at 132-33. The Third Circuit used continuing offense analysis to determine whether the “found in”

language was intended to toll the five year statute of limit at io ns on §1326, and concl uded that, i n

DiSantillo ’s circumstances, it did not. However, in instances where the deported alien surreptitiously

enters the country, and is later discovered by the INS, the statute of limitations does not begin to run

until his presence as well as the illegal status of that presence is discovered by the INS. U nited States6

v. Gomez , 38 F.3d 1031, 1036 (8th Cir. 1994); DiSantillo , 615 F.2d at 132 (dicta).

Adopting the reasoning used in Gomez , we hold that a previously deported alien is “found

in” the Unit ed States when his physical presence is discovered and noted by the immigration

authorities, and the knowledge of the illegal it y o f his presence, through the exercise of diligence

typical of law enforcement authorities, can reasonably be attributed to the immigration authorities.

Gomez , 38 F.3d at 1037.

Where a deported alien enters the United States and remains here with the knowledge that

his entry is illegal, his remaining here until he is “found” is a continuing offense because it is “an

unlawful act set on foot by a single impulse and operated by an unintermittent force,” to use the

Supreme Court’s language. S ee Midstate Horticultural Co

., 306 U.S. at 166. That “force” is the

alien’s knowledge that his entry is illegal due to his prior deportation, and his apparent intent to

remain in the United States. This analysis gives common sense effect to the “found in” language of

§1326, which is obviously intended to extend the definition of the offense to include those situations

where the alien is the only one who knows the precise date of his surreptitious entry and knows that

he has violated the law in reentering the country after he has been arrested and deported. See G omez

,

38 F.3d at 1035. Additionally, this interpretation gives effect to the entire statutory phrase at issue,

rather than just two words, because §1326 is to include “any alien who . . . is a t any time found in”

the United States.

To apply this reasoning to the case at bar, Santana illegally reentered the United States in

1992. His physical presence was not noted by immigration authorities at the time of his reentry , nor

could awareness o f his presence be reasonably attributed to them until his interview with the INS

agent in TDCJ. Thus, he was “found in” the United States when the INS agent discovered his

presence and Sa nt ana admitted to him that he had previously been deported. The date of his

surreptitious entry is irrelevant for sentencing purposes, only the fact that he was “ found” by

immigration authorities while serving a sentence in the TDCJ. This result is in accord with the Nineth

Circuit’s holding that §1326 applied to a deported alien whose presence in a California state prison7

was discovered by an INS agent. United States v. Ortiz-Villegas , 49 F.3d 1435 (9th Cir. 1995).

Section 4 A1.1(d) provides that two points should be added to the criminal history category

“if the defendant committed the instant offense while under any criminal justice system sentence,

including probation, parole, supervised release, imprisonment, work release, or e scape status.”

Section 4A1.1(d) applies “if the defendant committed any part of the instant offense (i.e., any relevant

conduct) while under any criminal justice sentence.” §4A1.1, comment. (n.4). Thus, the §4A1.1(d)

two-point enhancement for purposes of criminal history calculation is appropriate where a continuing

offense begins before the offense for which the defendant is under a criminal justice sentence because

“[a] continuing offense, by its very nature, does not terminate until the date of the indictment or the

voluntary termination of the illegal activity.” U n ited States v. Maxi m , 55 F.3d 394, 397 (8th Cir.

1995).

Santana pleaded guilty to the charge that “on or about June 7, 1 994 . . . [he], an alien

previously arrested and deported, was found unlawfully present in the United States” in violation of

8 U.S.C. §1326. On that dat e, Sant ana was imprisoned in the TDCJ-ID. Because a “found in”

vio lation is a continuing violation until the date the alien is discovered by immigration authorities,

Santana committed all or part of that violation on the date he was discovered while imprisoned on

the state offense. Therefore, the district court did not err in applying §4A1.1(d).

Santana further argues that §5G1.3(a) is inapplicable because he was not serving a term of

imprisonment when he crossed the border. The sentencing court has discretion to impose a

concurrent or consecutive sentence on a defendant who is already subject to an undischarged term

of imprisonment. 18 U.S.C. §3584(a). U nited States v. Hernandez

, 64 F.3d at 179, 182 (5th Cir.

1995). In exercising that discretion, the court must consider t he applicable guidelines and policy

statements in effect at the time of sentencing. 18 U.S.C. § 3553(a); H ernandez

, 64 F.3d at 182.

S ection § 5G1.3 “provides direction to the court when a term of imprisonment is impo sed on a

defendant who is already subject to an undischarged term of imprisonment. See 18 U.S.C. § 3584.”

U.S.S.G. §5G1.3, comment (backg’d). Because Santana’s violation of §1326 continued until he was8

“found in” TDCJ, the imposition of a consecutive sentence was not in error, whether that consecutive

sentence was imposed under § 5G1.3(a) or under (c).

Thus, because Santana, for the purposes of sentencing , was “found in” the United States

while under sentencing for committing another offense, the U.S.S.G. §4A1.1(d) enhancement as well

as the consecutive sentence pursuant to U.S.S.G. §5G1.3(a) are AFFIRMED.