1 An I-94 form is an alien arrival and departure record that is stamped by an immigration

inspector with the appropriate visa classification; when an individual is approved for permanent

resident alien status, his I-94 is stamped as a temporary I-551. United States Court of Appeals,

Fifth Circuit.

No. 95-20371

Summary Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

Alex SALAZAR, Defendant-Appellant.

Nov. 21, 1995.

Appeals from the United States District Court for the Southern District of Texas.

Before KING, SMITH and BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Defendant Alex Salazar appeals his sentence for forging immigration documents. Finding no

error, we affirm.

I.

The Immigration and Naturalization Service ("INS") received a tip that Salazar was making

and selling fraudulent immigration documents. INS agents then monitored several meetings between

Salazar and government informers, including two meetings during which defendant sold fraudulent

I-94 forms 1 to the informers. The agents later searched Salazar's home and office, seizing 508 blank

I-94's, a date stamp, and a rubber stamp marked "PROCESSED FOR I-5 51, TEMPORARY

EVIDENCE OF LAWFUL PERMANENT RESIDENCE."

Salazar was indicted on two counts of knowingly forging an immi g ration document, in

violation of 18 U.S.C. § 1546(a), and one count of knowingly posse ssing a document-making

implement with intent to use it in making a false immigration form, in violation of 18 U.S.C. §

1028(a)(5). He pleaded guilty to one count of knowingly forging an immigration document; the

remaining counts were dismissed, pursuant to a plea agreement.2 This argument is irrelevant, as Salazar concedes that a single document can comprise a set for

purposes of the guidelines. In fact, Salazar argues that "[a] "set' would require a completed

document for an individual or a group of completed documents for an individual" (emphasis

added). Salazar's counsel also conceded during the sentencing hearing that his argument is not

based upon the number of documents necessary to comprise a set. The probation officer calculated an offense level of 13: a base offense level of 9, U.S.S.G.

§ 2L2.1(a) (1994); an upward adjust ment of 6 because the offense involved more than 100

documents, U.S.S.G. § 2L2.1(b)(2); and a 2-point reduction for acceptance of responsibility,

U.S.S.G. § 3E1.1(a). The probation officer further found that with a criminal history category of I,

Salazar's guideline range was 12-18 months' imprisonment. The district court adopted the findings

of the presentence report and sentenced Salazar to twelv e mo nt hs' imprisonment, two years'

supervised release, a fine of $1,000, and a special assessment of $50.

II.

Salazar contends that the district court erred in imposing the six-level increase for an offense

invo lving 100 or more documents. The sentencing guidelines require the district court to increase

the base offense level "[i]f the offen se involved six or more sets of documents or passports."

U.S.S.G. § 2L2.1(b)(2). Salazar argues that only a completed I-94, "complete with photographs of

the aliens and stamped "Temporary I-551,' " constitutes a "set," and the district court therefore erred

in considering the 508 blank I-94's to be "sets" of documents. In support of this argument, Salazar

observes that possession of blank I-94's is lawful, and government bookstores sell them to the public.

The government responds that the blank forms cou nt as sets of documents involved in the

offense, because Salazar was in the business of selling fraudulent I-94's and intended to falsify them.

The government further argues that each blank form constitutes a "set of documents." 2

We review the district court's application of the guidelines de novo and defer to its findings

of fact unless they are clear error. U nited States v. Sneed, 63 F.3d 381, 389 (5th Ci r.1995). The

district court observed at the sentencing he aring that "the operative word here is "involved.' "

Salazar's offense involved stamping bla nk fo rms, and he had 508 blank forms and a stamp. The

district court further found that this is not a case in which the defendant intended to falsify a few I94's and "just happened to have [extra blank forms] in a desk drawer." Instead, the court foundSalazar was in the business of selling fraudulent I-94's for profit and intended to falsify "as many [I94's] as he had customers to come up with."

We agree with the district court's analysis. Salazar is correct that his crime is falsifying I-94's,

not possession of blank fo rms. The guidelines punish that offense based upon the number of

documents involved, however, not upon the numb er o f documents completed. Defendant relies

heavily on United States v. Martinez-Cano, 6 F.3d 1400 (9th Cir.1993), for the notion that the

definition of "sets" is ambiguous. In M artinez-Cano, however, the court assumed that blank

documents qualified as documents involved in the underlying offense. S ee id. at 1401, 1403 (increase

in sentence for manufacturing false documents based in part upon possession of sixteen social security

cards, only six of which were completed). Like the Ninth Circuit, we see no reason to distinguish

between completed and uncompleted documents.

It is arguable that if thi s were a case in which a defendant bought a package of 100 blank

fo rms for the purpose of making only one fraudulent I-94, then the extra blanks would not be

involved in the offense, because the defendant had no i nt ent io n of using the extras in his criminal

activities. As the district court found, however, this is not such a case. Salazar did not purchase one

packet of 100; instead, he bought more than five such packets, along with the equipment necessary

to complete the I-94's, and readily sold "as many as he had customers."

Finally, Salazar contends that because the term "sets of documents" is vague, the rule o f

lenity requires us to interpret the guidelin es in his favor. While there appears to be some

disagreement about the meaning of the term "sets," that disagreement is not at issue in this case. S ee

supra note 2. As we have no difficulty interpreting the term "documents involved," the rule of lenity

is of no benefit to Salazar.

The judgment of sentence is AFFIRMED.