*

Honorable William C. O'Kelley, U.S. District Judge for the

Northern District of Georgia, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-9134.

UNITED STATES of America, Plaintiff-Appellee,

v.

Romel CASTRILLON-GONZALEZ, Defendant-Appellant.

March 13, 1996.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:94-00248-CR-1-ODE), Orinda D. Evans,

Judge.

Before BIRCH, Circuit Judge, GODBOLD, Senior Circuit Judge, and

O'KELLEY*

, District Judge.

O'KELLEY, District Judge:

This case is before the court on defendant-appellant's appeal

of a sentence received on September 28, 1994. The court finds that

the district judge properly applied the United States Sentencing

Commission Guidelines in imposing the sentence and therefore

affirms the decision below.

Facts

Defendant was charged with being an alien found in the United

States without the permission of the Attorney General, in violation

of 8 U.S.C. § 1326. Defendant entered a guilty plea to the one

count indictment on July 18, 1994. On September 28, 1994,

defendant was sentenced to serve thirty-seven (37) months in

prison, followed by three (3) years of supervised release and

payment of a special assessment of Fifty Dollars ($50.00).

Defendant is a native and citizen of Colombia. He was
previously deported from the United States on three prior

occasions: January 21, 1983, January 2, 1984, and July 30, 1986.

On July 25, 1986, defendant was convicted of being found in the

United States after deportation, in violation of 8 U.S.C. § 1326.

As noted, defendant was deported and placed on five years

probation. While in the United States illegally on previous

occasions, defendant was convicted of, inter alia, resisting

arrest, fleeing and attempting to elude police, disorderly conduct,

providing a false name, contempt of court, criminal trespass, a

probation violation, possession of marijuana, driving under the

influence (twice), public indecency, obstruction of an officer,

leaving the scene of an accident, and forgery. Defendant has used

sixteen aliases, two dates of birth, and three social security

numbers.

Defendant was sentenced for the crime underlying this appeal

pursuant to a guilty plea. The presentence report, prepared by the

United States Probation Office, included two criminal history

points, ultimately approved by the district court, for a state

conviction and sentence for resisting arrest. The date of that

state sentence was October 7, 1982. The probation officer

suggested to the defendant that there was a possibility that the

judge might employ an upward departure due to the fact that the

criminal history category did not reflect the seriousness of

defendant's past criminal conduct, nor did it reflect defendant's

propensity to engage in future criminal conduct.

The district court, as noted, included the two criminal

history points attributed to the October 7, 1982, conviction,
resulting in a total of fourteen criminal history points, and a

criminal history of Category VI. The total offense level was

deemed to be six. The court then upwardly departed six levels due

to the inadequacy of the criminal history and the likelihood that

defendant would engage in criminal activity in the future. The

range prescribed was thirty to thirty-seven months, and the

sentence imposed was thirty-seven months.

There are two questions of law on appeal: whether the

district court correctly included the 1982 conviction in

calculating the criminal history category, and whether the district

court correctly determined that an upward departure of six levels

was justified.

Standard of Review

 Review of a district court's departure from the sentencing

guidelines is governed by a three-part analysis: (1) the legal

question of the district court's guideline interpretation is

reviewed de novo; (2) the factual basis for a departure is

considered pursuant to the clear error standard of review; and,

(3) the direction and degree of departure are reviewed for

reasonableness. United States v. Maurice, 69 F.3d 1553, 1556 (11th

Cir.1995); United States v. Weaver, 920 F.2d 1570, 1573 (11th

Cir.1991). This is consistent with the statutory framework

establishing the Sentencing Commission, which sets forth a limited

sphere of appellate review. 18 U.S.C. § 3742(f). See also

Williams v. United States, 503 U.S. 193, 198-99, 112 S.Ct. 1112,

1118-19, 117 L.Ed.2d 341 (1992).

Computation of the Criminal History Category
The United States Sentencing Commission Guidelines provide for

the inclusion of two criminal history points for a prior sentence

of imprisonment between sixty days and thirteen months. United

States Sentencing Commission, Guideline Manual, § 4A1.1(b)

(Nov.1994) ("USSG"). Such a sentence is included, however, only if

it was imposed within ten years of the defendant's commencement of

the instant offense. U.S.S.G. § 4A1.2(e)(2).

Defendant argues that the underlying offense of being "found

in" the United States illegally is not encompassed by the

aforementioned guideline sections, insofar as he was arrested on

December 9, 1993, more than ten years after his 1982 conviction.

Defendants date of illegal entry into the United States was at some

point in February, 1991, less than ten years after his 1982

conviction. Thus, the operative question is at what point is the

offense at issue deemed to commence.

 Defendant pleaded guilty to a violation of 8 U.S.C. § 1326.

That section states that "any alien who has been arrested or

deported ... and thereafter ... enters, attempts to enter, or is at

any time found in the United States ... shall be fined under Title

18, or imprisoned not more than 2 years, or both." Id. (emphasis

added). The added emphasis in the language reproduced above is

significant. The statute contains three separate and distinct

offenses, set forth disjunctively: entering, attempting to enter,

or being found in the United States. This court has previously had

the opportunity, to some extent, to visit this issue. This court

previously held:

In order for "found in" and "enters" to have different

meanings, thus to avoid "enters" being a mere redundancy,
"found in" must apply to aliens who have entered

surreptitiously, bypassing a recognized immigration point of

entry. The phrase "found in" is synonymous with "discovered

in." ... Congress added the phrase "found in" to alleviate

the problem of prosecuting aliens who enter in some illegal

manner.

United States v. Canals-Jimenez, 943 F.2d 1284, 1287 (11th

Cir.1991) (citation omitted). Although the question before the

court in Canals-Jimenez was not identical with that in the case sub

judice, it is instructive. The language of § 1326 clearly

contemplates three distinct offenses, the violation of any of which

can trigger the penalty set forth in the latter portion of the

statute. This reading is consistent with the well established

axiom of statutory construction "that a statute is to be

interpreted so that no words shall be discarded as being

meaningless, redundant, or mere surplusage." Id. at 1287

(citations omitted). It is also consistent with this court's

interpretation of Canals-Jimenez, in United States v. Gay, 7 F.3d

200, 202 (11th Cir.1993), wherein a defendant who entered the

United States illegally, albeit by passing through immigration with

a passport that did not indicate his prior deportation, was deemed

to be "found in" the United States in violation of § 1326.

 Applying this reading of § 1326 to the facts of this case,

confirms the propriety of the district court's ruling. Defendant

committed the offense of entering the United States illegally in

February, 1991. That offense was completed upon entry, and the

relevant date is within ten years of the 1982 conviction, thus

falling under U.S.S.G. § 4A1.2(e)(2). Defendant did not plead

guilty to this offense. The crime of being "found in" the United

States illegally was not complete until defendant's arrest on
 1

It is possible that one could commence the offense of being

"found in" by remaining in the United States after the expiration

of a legitimate visa. In that case, the crime would not commence

with the individual's entry, but rather at the point the visa

expired. 

December 9, 1993. This is the charge to which defendant pleaded

guilty. However, that crime was commenced by the aforementioned

illegal entry in February, 1991. The distinction between

completion and commencement is critical, inasmuch as § 4A1.2(e)(2)

counts any sentence imposed "within ten years of the defendant's

commencement of the instant offense...." U.S.S.G. § 4A1.2(e)(2)

(emphasis added). The fact that the illegal entry is capable, in

and of itself, of constituting a distinct criminal offense, does

not preclude it from being the predicate act to the crime of being

illegally "found in" the United States. By definition, one must

enter the United States, either legally or illegally, in order to

be found therein. Thus, it is entirely consistent with the

structure of § 1326 to conclude that the commencement of the crime

of being "found in" the United States is at the point of entry.1

Accordingly, the district court's inclusion of this offense was

correct.

The Upward Departure

 The Sentencing Guidelines provide a mechanism by which a

district court judge may depart from the guidelines range "[i]f

reliable information indicates that the criminal history category

does not adequately reflect the seriousness of the defendant's past

criminal conduct or the likelihood that the defendant will commit

other crimes...." U.S.S.G. § 4A1.3. The court may consider

factors such as prior sentences which were not used in computing
the criminal history category, prior similar misconduct evidenced

by a civil adjudication of noncompliance with an administrative

order, or prior similar adult conduct which did not result in a

criminal conviction. Id.

In the case at bar, defendant was placed on notice as to the

possibility of an upward departure in the Presentence Report. The

district court, at the sentencing hearing, did in fact depart

upward. The court found as follows:

[W]hat I see here is a clear pattern of the defendant's

re-entering the country after being deported, and after at

least one conviction for illegal re-entry. I also see

interspersed in those periods of time when the defendant had

been in the United States that he has been committing

crimes....

I think when there have been four illegal entries, one of

which has resulted in a conviction and which was followed by

yet another illegal re-entry, that that's a pretty good reason

to think that the defendant might be coming back.

(R-2-9-10; 11). Defendant's past pattern of criminal activity is

set forth in the first part of this opinion. Of particular import,

though, is defendant's multiple prior illegal entry and re-entries

into the United States as an adult, and his repeated failure to

comply with administrative orders not to reenter the country

without permission.

Based on the foregoing conclusions, the district court

determined that a departure beyond a Category VI criminal history

was appropriate. The possibility of such a conclusion is

anticipated by the Guidelines. "The Commission contemplates that

there may, on occasion, be a case of an egregious, serious criminal

record in which even the guideline range for Criminal History

Category VI is not adequate to reflect the seriousness of the
 2

It is interesting to observe that the amended guidelines

state: "In the case of a defendant with repeated prior instances

of deportation without criminal conviction, an upward departure

may be warranted." U.S.S.G. § 2L1.2, Commentary n. 2 (Nov.

1995). Of course, defendant is bound only by those guidelines in

effect at the time of his sentencing, 18 U.S.C. § 3553(a)(4); 

United States v. Marin, 916 F.2d 1536, 1538 (11th Cir.1990), but

the amendment is worth noting. 

defendant's criminal history. In such a case, departure above the

guideline range for a defendant with Criminal History Category VI

may be warranted." U.S.S.G. § 4A1.3. The Guidelines further note

that the "nature of the prior offenses rather than simply their

number" should be of greater import in the court's evaluation. Id.

The facts of the case at bar fit this situation. Defendant's prior

criminal conduct is, at least in part, identical to the offense to

which he has pleaded guilty. Moreover, his propensity to commit

other crimes while in the United States illegally is

uncontroverted.

Defendant raises a number of arguments in an effort to

challenge the legitimacy of the upward departure. First, defendant

cites the U.S.S.G. Application Notes, which state: "In the case of

a defendant with repeated prior instances of deportation without

criminal conviction, a sentence at or near the maximum of the

applicable guideline range may be warranted." U.S.S.G. § 2L1.2,

Commentary n. 2 (Nov. 1993).2

 This argument is without merit,

because defendant has indeed been convicted on a prior occasion for

reentry subsequent to deportation. Defendant also suggests that

the district court did not adequately articulate its basis for an

upward departure. This court has previously held that "an

appellate court may properly consider the entire record from the
sentencing hearing, including the [Presentence Report], in

reviewing the district court's factual support for its decision."

United States v. Brown, 9 F.3d 907, 912 (11th Cir.1993) (citing

United States v. Suarez, 939 F.2d 929, 933-34 (11th Cir.1991)).

Pursuant to this standard, the court is satisfied, as evidenced by

the excerpt reproduced above, that the district court sufficiently

articulated the grounds for its upward departure, and that these

constitute legally acceptable reasons. There is ample factual

support in the record for this determination, and the direction and

degree of departure are reasonable.

Conclusion

The sentence imposed by the district court is hereby AFFIRMED.