FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 07-50381

v.  D.C. No.

GUSTAVO CRUZ-GRAMAJO, CR-07-00479-R-01

Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

No. 07-50477 RAY AGUILAR-RODRIGUEZ, also

known as Renaldo Aguilar D.C. No. 

Rodriguez, also known as CR-07-00900-RGKBenjamin Aguilar, also known as 001

Rey A. Rodriguez, also known as

Ray Rodriguez,

Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

R. Gary Klausner, District Judge, Presiding

8097
UNITED STATES OF AMERICA, 

No. 07-50534 Plaintiff-Appellee,

D.C. No.

v.  CR-07-00424-AHM

ERNESTO PULIDO,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

A. Howard Matz, District Judge, Presiding

Argued and Submitted

October 24, 2008—Pasadena, California

Filed June 26, 2009

Before: Harry Pregerson, Cynthia Holcomb Hall and

N. Randy Smith, Circuit Judges.

Opinion by Judge Hall;

Partial Concurrence and Partial Dissent by Judge Pregerson

8098 UNITED STATES v. CRUZ-GRAMAJO
COUNSEL

Phillip I. Bronson, Sherman Oaks, California, for defendantappellant Cruz-Gramajo; Davina T. Chen, Deputy Federal

Public Defender, for defendant-appellant Aguilar-Rodriguez;

Michael Tanaka, Deputy Federal Public Defender, for

defendant-appellant Pulido; Gia Kim Deputy Federal Public

Defender, for defendants-appellants Aguilar-Rodriguez and

Pulido.

Jeff P. Mitchell, Assistant United States Attorney, Domestic

Security and Immigration Crimes Section; Erik M. Silber,

UNITED STATES v. CRUZ-GRAMAJO 8101
Assistant United States Attorney, Criminal Appeals Section,

Los Angeles, California, for the plaintiff-appellee.

OPINION

HALL, Circuit Judge:

These consolidated cases concern the Sentencing Guidelines applicable to illegal reentry into the United States in violation of 8 U.S.C. § 1326. The facts in each case are similar.

Defendants are foreign citizens who were deported and then

returned to this country without permission. After their illegal

reentries — but before immigration authorities discovered

them — Defendants committed and were convicted for various state law offenses, including burglary, driving under the

influence, and evading police. At sentencing for their § 1326

offenses, the district courts held that Defendants’ intervening

state law crimes constituted “criminal history” for purposes of

calculating their Guidelines ranges.

Defendants attack these holdings. They note that the Guidelines exclude from “criminal history” acts that are defined as

“relevant conduct” to the conviction offense. Relevant conduct, they argue, includes conduct occurring “during” the conviction offense. Illegal reentry is a continuing offense that

lasts from reentry until the violator is found by immigration

authorities. Therefore, Defendants argue, the state law crimes

they committed after returning to this country were still “during” their § 1326 offenses and thus do not constitute “criminal

history.” Defendants’ argument ignores the context, structure

and purpose of the Guidelines. We affirm the district courts’

decisions to include Defendants’ intervening state law crimes

in the criminal history calculation. 

Defendants Gustavo Cruz-Gramajo (“Cruz-Gramajo”) and

Ray Aguilar-Rodriguez (“Aguilar-Rodriguez”) raise an addi8102 UNITED STATES v. CRUZ-GRAMAJO
tional issue. In addition to calculating criminal history points

for the intervening crimes themselves, the district courts gave

them points for violating § 1326 while under a criminal justice sentence. Cruz-Gramajo and Aguilar-Rodriguez argue

these rulings were erroneous, because the sentences at issue

were for crimes they committed after illegally returning. We

affirm the district court’s ruling as to Aguilar-Rodriguez, and

need not decide the issue raised by Cruz-Gramajo, as any

potential error is harmless. 

I. Background

A. Cruz-Gramajo

Cruz-Gramajo is a citizen of Mexico. In January 2000, he

was convicted of possessing marijuana with intent to sell, in

violation of Cal. Health & Safety Code § 11359. After serving

prison time for the drug offense, Cruz-Gramajo was deported

in April 2003 and then again in September 2004. CruzGramajo returned yet again, apparently at some point in 2006.

In March 2006, he committed grand theft and burglary, in violation of Cal. Penal Code §§ 487 and 459, respectively. For

each offense, Cruz-Gramajo was sentenced to approximately

one year in jail and three years probation. On February 23,

2007, while still incarcerated in Los Angeles County Jail,

Cruz-Gramajo came to the attention of immigration officials.

He was then charged with being an alien found in the United

States after having been deported, in violation of § 1326.1 The

1The statute provides in relevant part: 

(a) In general 

Subject to subsection (b) of this section, any alien who— 

(1) has been denied admission, excluded, deported, or removed

or has departed the United States while an order of exclusion,

deportation, or removal is outstanding, and thereafter 

(2) enters, attempts 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 v. CRUZ-GRAMAJO 8103
district court found Cruz-Gramajo guilty after a one-day

bench trial. 

At sentencing, and over Cruz-Gramajo’s objection, the district court held that the grand theft and burglary convictions

constituted “criminal history,” each resulting in two criminal

history points pursuant to U.S.S.G. §§ 4A1.1(b) and

4A1.2(e)(2). Also over Cruz-Gramajo’s objection, the district

court added two criminal history points under U.S.S.G.

§ 4A1.1(d) for committing the illegal reentry while under a

criminal justice sentence. Together with the three criminal

history points for the drug possession charge, the court found

that Cruz-Gramajo had a total of nine criminal history points,

which resulted in a criminal history category of IV. The court

also calculated a total offense level of twenty-one (resulting

from a base offense level of eight, a sixteen-level enhancement because the marijuana conviction was a drug trafficking

offense, and a three-point reduction for acceptance of responsibility). This resulted in a Guidelines range of fifty-seven to

seventy-one months. The court imposed a fifty-seven-month

sentence. 

United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to

such alien’s reapplying for admission; or (B) with respect to an

alien previously denied admission and removed, unless such alien

shall establish that he was not required to obtain such advance

consent under this chapter or any prior Act, 

shall be fined under Title 18, or imprisoned not more than 2

years, or both. 

8 U.S.C. § 1326(a). Subsection (b) extends the maximum period of imprisonment if the defendant was deported after previously having been convicted of various crimes. Defendants do not dispute that the offenses they

committed before they were deported fall under § 1326(b). 

8104 UNITED STATES v. CRUZ-GRAMAJO
B. Aguilar-Rodriguez

Aguilar-Rodriguez also appeals his sentence for violating

§ 1326. A citizen of Mexico, Aguilar-Rodriguez was convicted on September 15, 1997, for possession of a controlled

substance for sale in violation of Cal. Health & Safety Code

§ 11351(a). Aguilar-Rodriguez was deported from the United

States in October 1998, and reentered on or about May 1,

2005. After he returned, Aguilar-Rodriguez was twice convicted for driving under the influence in violation of Cal.

Vehicle Code § 23152(b), once in 2005 and again in 2007.2

Apparently due to the second DUI, Aguilar-Rodriguez was

found in Los Angeles by immigration officials on or about

July 10, 2007. 

Aguilar-Rodriguez’s § 1326 case received “fast track”

treatment, and his binding plea agreement was entered pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure.3

 The parties agreed to a sentence at the low end of the

Guideline range, determined by an offense level of seventeen

and the criminal history the district court calculated. 

2Aguilar-Rodriguez’s probation from the first DUI was revoked in

October 2005, and a bench warrant was issued which remained outstanding at the time of Aguilar-Rodriguez’s sentencing for his § 1326 conviction. 

3Under this rule, the parties to a plea agreement may “agree that a specific sentence or sentencing range is the appropriate disposition of the

case, or that a particular provision of the Sentencing Guidelines, or policy

statement, or sentencing factor does or does not apply . . . .” Fed. R. Crim.

P. 11(c)(1)(C). “[S]uch a recommendation or request binds the court once

the court accepts the plea agreement . . . .” Id. “Fast track” treatment refers

to the government stipulating to an offense level that includes a three-level

reduction for acceptance of responsibility under U.S.S.G. § 3E1.1, and a

four-level reduction for participation in the “early disposition program”

under § 5K3.1. In exchange, the defendant waives indictment and agrees

that the appropriate sentence is the low-end of the applicable Guideline

range, effectively waiving any argument that his sentence should be lower

under the 18 U.S.C. § 3553(a) factors. 

UNITED STATES v. CRUZ-GRAMAJO 8105
Over Aguilar-Rodriguez’s objection, the district court

treated the DUIs as criminal history, each worth two criminal

history points. Additionally, in a ruling that AguilarRodriguez did not dispute below, the court added two criminal history points under U.S.S.G. § 4A1.1(d) on the ground

that Aguilar-Rodriguez committed § 1326 offense while on

probation for the DUI convictions. Together with five points

that are not in dispute, the district court ruled that AguilarRodriguez had eleven criminal history points, resulting in a

criminal history category of V. This resulted in a Guideline

range of forty-six to fifty-seven months. The district court

sentenced Aguilar-Rodriguez to forty-six months in prison.

C. Pulido

Ernesto Pulido also appeals his § 1326 sentence. In February 2001, Pulido was convicted of cultivating marijuana in

violation of Cal. Health & Safety Code § 11358. He was

deported from the United States on or about March 2, 2006,

and returned shortly thereafter. About three weeks later, on

March 21, 2006, Pulido violated Cal. Vehicle Code § 2800.2

by evading a police officer during a traffic stop. Immigration

officials became aware of Pulido that same day. 

Pulido was charged with violating § 1326. Like AguilarRodriguez, his case received “fast track” treatment, and he

entered a binding plea agreement under Rule 11(c)(1)(C) of

the Federal Rules of Criminal Procedure. The agreement stipulated that Pulido’s total offense level was seventeen and provided that the appropriate sentence would be the low end of

the Guidelines range in light of the criminal history calculated

by the district court. 

Over Pulido’s objection, the district court treated the 2006

conviction for evading police as criminal history, which

resulted in a criminal history category of VI and a Guideline

range of fifty-one to sixty-one months. The court sentenced

Pulido to fifty-one months in prison. 

8106 UNITED STATES v. CRUZ-GRAMAJO
II. Standard of Review 

We review de novo the district court’s application of the

Guidelines, including whether a prior conviction may be used

for sentencing purposes. See United States v. RodriguezRodriguez, 393 F.3d 849, 856 (9th Cir. 2005). We review “the

district court’s interpretation of the Sentencing Guidelines de

novo, the district court’s application of the Sentencing Guidelines to the facts of this case for abuse of discretion, and the

district court’s factual findings for clear error.” United States

v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005). “Remand

is not necessary if ‘the reviewing court concludes, on the

record as a whole, that the error was harmless, i.e., that the

error did not affect the district court’s selection of the sentence imposed.’ ” United States v. Rutledge, 28 F.3d 998,

1003 (9th Cir. 1994) (quoting Williams v. United States, 503

U.S. 193, 203 (1992)). 

III. Discussion

A. Criminal History Calculation 

When interpreting the Sentencing Guidelines, we apply

“ ‘the rules of statutory construction.’ ” United States v.

Valenzuela, 495 F.3d 1127, 1133 (9th Cir. 2007) (quoting

United States v. Robinson, 94 F.3d 1325, 1328 (9th Cir.

1996)). Under these rules, “[t]he plain meaning of unambiguous language in a guideline provision controls.” Id. While the

“starting point is always the language of the statute itself,”

Jeffries v. Wood, 114 F.3d 1484, 1495 (9th Cir. 1997),

“[r]ather than focusing just on the word or phrase at issue, this

court looks to the entire statute to determine . . . intent.” Sanchez v. Pacific Powder Co., 147 F.3d 1097, 1099 (9th Cir.

1998) (citing Duffield v. Robertson Stephens Co., 144 F.3d

1182, 1192-93 (9th Cir. 1998) (“When examining the language of the governing statute, we must not be guided by a

single sentence . . . , but look to the provisions of the whole

law, and to its object and policy.”) (citations omitted)). “Thus,

UNITED STATES v. CRUZ-GRAMAJO 8107
the structure and purpose of a statute may also provide guidance in determining the plain meaning of its provisions.” The

Wilderness Society v. United States Fish & Wildlife Srv., 353

F.3d 1051, 1060-1061 (9th Cir. 2003) (en banc) (citing United

States v. Lewis, 67 F.3d 225, 228-29 (9th Cir. 1995)

(“Particular phrases must be construed in light of the overall

purpose and structure of the whole statutory scheme.”)).

Using these principles to evaluate the purpose, structure, and

interactions of Guidelines §§ 4A1.2, 1B1.3 and 2L1.2, in light

of the overarching goals in sentencing, we hold that § 4A1.2

does not preclude the district court from assigning criminal

history points for sentences received after an illegal entry, but

before an alien is found by immigration authorities. 

[1] The Guidelines determine sentencing ranges by computing an “offense level” and a “criminal history” category.

Defendants receive criminal history points for certain “prior

sentences.” See U.S.S.G. §§ 4A1.1, 4A1.2. “The term ‘prior

sentence’ means any sentence previously imposed upon adjudication of guilt . . . for conduct not part of the instant

offense.” U.S.S.G. § 4A1.2(a)(1) (emphasis added). Under

this definition, conduct that was “part of the instant offense”

cannot receive criminal history points. See id. The commentary associated with section 4A1.2 further elaborates on what

is meant by the term prior sentence.

“Prior sentence” means a sentence imposed prior to

sentencing on the instant offense, other than a sentence for conduct that is part of the instant offense.

A sentence imposed after the defendant’s commencement of the instant offense, but prior to sentencing on the instant offense, is a prior sentence if

it was for conduct other than conduct that was part

of the instant offense. Conduct that is part of the

instant offense means conduct that is relevant conduct to the instant offense under the provisions of

§ 1B1.3 (Relevant Conduct).

8108 UNITED STATES v. CRUZ-GRAMAJO
U.S.S.G. § 4A1.2, cmt. n.1.4

 (emphasis added) (internal citations omitted). 

Defendants argue that because a violation of § 1326 is considered a continuing offense that extends from the moment of

illegal reentry until discovery by immigration officials, see,

e.g., United States v. Reyes-Pacheco, 248 F.3d 942, 946 (9th

Cir. 2001), their state law offenses should be considered relevant conduct to their unlawful reentry. Defendants rely on the

description of relevant conduct in § 1B1.3 which includes “all

acts and omissions committed . . . by the defendant . . . 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 . . . .”

(emphasis added).5 Thus, they argue that their intervening

4

“[C]ommentary in the Guidelines Manual that interprets or explains a

guideline is authoritative unless it violates the Constitution or a federal

statute, or is inconsistent with, or a plainly erroneous reading of, that

guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993). The government concedes that the commentary here is authoritative. 

5U.S.S.G. § 1B1.3(a) provides in its entirety: 

Chapters Two (Offense Conduct) and Three (Adjustments).

Unless otherwise specified, (i) the base offense level where the

guideline specifies more than one base offense level, (ii) specific

offense characteristics and (iii) cross references in Chapter Two,

and (iv) adjustments in Chapter Three, shall be determined on the

basis of the following: 

(1) (A) all acts and omissions committed, aided, abetted,

counseled, commanded, induced, procured, or willfully

caused by the defendant; and 

(B) in the case of a jointly undertaken criminal activity (a

criminal plan, scheme, endeavor, or enterprise undertaken by

the defendant in concert with others, whether or not charged

as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, 

that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of

UNITED STATES v. CRUZ-GRAMAJO 8109
state offenses occurred “during” their § 1326 offenses as a

temporal matter,6 and that this temporal relationship is sufficient to deem the state offenses “relevant conduct,” thereby

precluding the district court from considering the convictions

as part of their criminal history calculation. 

The government contests the Defendants’ interpretation of

the word “during.” The government does not dispute that illegal reentry is a continuing offense, or that the state offenses

at issue occurred during the illegal reentries as a temporal

matter. Instead, the government contends that a temporal relationship is not enough. The government reads the “during”

provision as only encompassing conduct that was both “during” and “in connection with” the conviction offense. In other

words, the government contends that to constitute “relevant

conduct” under § 1B1.3’s “during” provision, other offenses

must also be logically related to the offense for which a sentence is being imposed, and that such a logical relationship is

absent here.

attempting to avoid detection or responsibility for that

offense; 

(2) solely with respect to offenses of a character for which

§ 3D1.2(d) would require grouping of multiple counts, all

acts and omissions described in subdivisions (1)(A) and

(1)(B) above that were part of the same course of conduct or

common scheme or plan as the offense of conviction; 

(3) all harm that resulted from the acts and omissions specified in subsections (a)(1) and (a)(2) above, and all harm that

was the object of such acts and omissions; and 

(4) any other information specified in the applicable guideline. 

6Defendants rely on the recent decision United States v. Ressam, where

the Supreme Court held that the word “during” in 18 U.S.C. § 844(h),

which punishes any individual who “carries an explosive during the commission of any felony,” implies only a temporal relationship. See 128 S.Ct.

1858, 1860-61 (2008) (emphasis added). We separately note that the word

“carries” limits even this statute’s reach beyond merely the temporal

requirement provided by the word “during.” 

8110 UNITED STATES v. CRUZ-GRAMAJO
Both Defendants and the government cite precedent interpreting the phrase “during the commission of the offense of

conviction” in § 1B1.3 to support their respective positions.

The Defendants rely upon United States v. Johnson, 187 F.3d

1129 (9th Cir. 1999), and United States v. Stoterau, 524 F.3d

988 (9th Cir. 2008) as implicitly holding that a temporal relationship was sufficient to include acts committed by defendants under relevant conduct. Both cases, however, reviewed

the application of an enhancement for acts committed by the

defendant “during the commission of the offense of conviction” that were also related logically to the offense. The cases

did not decide what conduct the district court was precluded

from considering as part of criminal history, but rather what

conduct the district court was permitted to include in its consideration of relevant conduct. The government’s reliance on

precedent from other circuits, though helpful in illustrating

what results may follow from interpreting “during” to require

only a temporal nexus to the offense,7 also do not address the

precise issue in this case. 

The government correctly notes that the context of the

phrase and the structure and purpose of the Guidelines are relevant in determining the plain meaning of terms within a particular Guideline, rather than simply the definition of the

language used. But both parties’ reliance upon the meaning of

7

See, e.g., United States v. Ritsema, 31 F.3d 559, 567 (7th Cir. 1994)

(noting the “absurd results” resulting if “[t]he temporal dimension of relevant conduct” could “cause a court to convert a single possession conviction into a sweeping tool to gather in all of the otherwise unrelated

criminality of a defendant which occurred contemporaneously with the

charge[d] offense”); United States v. Kim, 896 F.3d 678, 684 n.4 (2d Cir.

1990) (noting temporal-only requirement would convert “a barroom brawl

occurring ‘during’ a three-month period in which a mail fraud offense was

committed” to relevant conduct). These cases, rather than determining

what constituted relevant conduct that a district court must exclude from

criminal history, contemplated what conduct the government should not be

permitted to consider relevant to a particular continuing offense, in order

to increase the offense level calculated from the charged offense. 

UNITED STATES v. CRUZ-GRAMAJO 8111
the phrase “during the commission of the offense,” is misplaced. We need not decide the general scope of relevant conduct a court is permitted to evaluate as a broad proposition.

What we instead decide today is the more narrow issue of

whether § 4A1.2 precludes a district court from assigning any

criminal history points for a sentence imposed prior to a

defendant being “found” by immigration authorities, by defining that conduct as “part of the instant offense.”

1. § 4A1.2

We begin our analysis by examining § 4A1.2(a)(1), and

application note 1, with the principles of statutory construction in mind. We note first that the purpose of § 4A1.2 is “ ‘to

reflect the seriousness of a defendant’s criminal history,’

while, at the same time, avoiding ‘overstat[ing] the seriousness of the defendant’s criminal conduct.’ ” United States v.

Marler, 527 F.3d 874, 879 (9th Cir. 2008) (quoting United

States v. Asberry, 394 F.3d 712, 719 (9th Cir. 2005)). The “ultimate goal remains finding a sentence that accurately reflects

both the seriousness of the underlying federal offense and the

extent and nature of the defendant’s criminal past.” Asberry,

394 F.3d at 719. 

[2] Section 4A1.2 uses two means of ensuring that a defendant’s criminal history is not overstated. The first, at issue in

this case, is the limitation that a “prior sentence” should incorporate only conduct “not part of the instant offense.” The

application note, however, expressly contemplates a situation

in which a defendant’s instant offense may be contemporaneous with conduct forming the basis of another sentence, and

yet not be considered relevant conduct: “[a] sentence imposed

after the defendant’s commencement of the instant offense,

but prior to sentencing on the instant offense, is a prior sentence if it was for conduct other than conduct that was part of

the instant offense.” § 4A1.2, cmt. n. 1 (emphasis added). The

Sentencing Commission did not limit the definition of prior

sentences to extend only to conduct committed entirely before

8112 UNITED STATES v. CRUZ-GRAMAJO
or after the conduct constituting the instant offense. Contrary

to Defendant’s interpretation, the use of the word “commencement” indicates that another offense can be committed

and counted as a prior sentence, though committed “during

the commission of the offense of conviction.” As written, this

sentence of the application note provides that Defendants’

state law convictions may not be part of the instant offense,

even if the sentences were imposed after Defendants commenced their § 1326 violations by illegally reentering the

country. The application note goes on to explain that to be

excluded as a prior sentence, the conduct must be relevant

conduct: 1) to the instant offense, 2) under the provisions of

§ 1B1.3 (Relevant Conduct). Id. Therefore, deciding whether

Defendants’ state law convictions constitute relevant conduct

requires applying all of the provisions of § 1B1.3 in light of

the instant offense, a violation of § 1326, a task we undertake

in the next section.

[3] The second means of preventing overstating, or doublecounting of a defendant’s criminal history is the limitation in

§ 4A1.2(a)(2), requiring: “[p]rior sentences imposed in related

cases . . . to be treated as one sentence . . . .” Application note

3 clarifies that if the two prior sentences are not separated by

an intervening arrest, they “are considered related if they

resulted from sentences that (A) occurred on the same occasion,8

(B) were part of a single common scheme or plan, or (C) were

consolidated for trial or sentencing.” Thus, § 4A1.2 limits the

number of points that can be assigned in criminal history by

first ensuring that the prior sentence has not actually been calculated as “part of the instant offense,” and secondly, by

ensuring that prior cases, related to each other, do not count

twice. 

8

In United States v. Marler, 527 F.3d 874, 877-881 (9th Cir. 2008), we

held that the defendant’s reliance on the “occurred on the same occasion”

prong was insufficient to make two prior sentences related for the purposes of counting criminal history merely because one of the offenses was

a continuing offense, escape, and therefore technically occurred contemporaneously with the other conviction for robbery. 

UNITED STATES v. CRUZ-GRAMAJO 8113
2. § 1B1.3

[4] The purpose of § 1B1.3 of the Guidelines, Relevant

Conduct, is to “capture the real offense behavior” involved in

defendant’s conduct. United States v. Romero, 293 F. 3d

1120, 1124 (9th Cir. 2002). The Sentencing Commission

accomplished this task by formulating a relevant conduct

guideline which “identified the categories of misconduct that

the sentencing judge could examine in determining whether to

make . . . adjustments to the base offense level,” specific

offense characteristics, cross references, and adjustments and

enhancements. United States v. Kim, 896 F.2d 678, 682 (2d

Cir. 1990) (emphasis added); see also § 1B1.3(a). The provisions of § 1B1.3 are written broadly to provide sentencing

judges maximum discretion, allowing flexibility in their application to a variety of crimes and circumstances. It is the provisions’ interactions with numerous other guidelines, however,

that determine what conduct is “relevant” to each specific

guideline, as indicated by the title “Relevant Conduct.” See

Singh v. Gonzalez, 499 F.3d 969, 977 (9th Cir. 2007) (noting

title “may be instructive in putting the statute in context”) (citing Almendarez-Torres v. United States, 523 U.S. 224, 234

(1998)). 

Applying the relevant conduct guideline can facilitate a district court’s consideration of germane uncharged conduct

occurring before, during, or after the charge-offense. United

States v. Ritsema, 31 F.3d 559, 567 (7th Cir. 1994). Conversely, the relevant conduct guideline can also limit the sentencing judge’s discretion to consider conduct independently

where it “involve[s] a pattern of misconduct that cannot readily be broken into discrete, identifiable units that are meaningful for purposes of sentencing.” § 1B1.3 (background). Thus,

§ 1B1.3(a)(2) of the relevant conduct guideline, in conjunction with U.S.S.G. § 3D1.2(d), provides that when conduct

involves the same course of conduct or common scheme or

plan, and the offense behavior and applicable guideline contemplate the total amount of harm or loss, or the involvement

8114 UNITED STATES v. CRUZ-GRAMAJO
of continuous behavior, the conduct is considered “relevant

conduct” for guidelines calculation purposes.9“The reference

to § 3D1.2(d), which provides for grouping of multiple counts

arising out of a continuing offense, when the offense guideline takes the continuing nature into account, also prevents

double counting.” § 1B1.3 (background). But § 3D1.2 does

not include the offense guideline applicable to illegal reentry

violations, U.S.S.G. § 2L1.2, within its coverage, as the

offense of being “found” does not contemplate continuous

related harm or loss. 

[5] An application note applicable to § 1B1.3(a)(2) explicitly cross-references § 4A1.2(a)(1), providing an example and

explanation of the Sentencing Commission’s intent regarding

the interaction of the relevant conduct and prior sentence provisions. In application note 8, the example is given of a defendant engaging in two drug sales as part of the same course of

conduct, facing conviction for one sale in state court and the

second in federal court. In these circumstances, § 1B1.3

makes clear that the state law conviction constitutes relevant

conduct, and not a prior sentence under § 4A1.2(a)(1).

§ 1B1.3, cmt. n. 8. In this case, Defendants do not argue that

their state law convictions were pursuant to the same course

of conduct as their illegal reentry, or that § 1B1.3(a)(2) is

even applicable. Instead, they rely solely on the temporal link

between the two offenses, caused by the continuous nature of

an illegal reentry offense. 

9Section 1B1.3(a)(3) continues this pattern of limiting conduct considered under relevant conduct by notions of proximate causation. Just as

§ 1B1.3(a)(2) limits its application to conduct “part of the same course of

conduct or common scheme,” the harm considered relevant for purposes

of § 1B1.3(a)(3) is limited to harm that was a “ ‘direct result’ or ‘flowed

naturally’ from the defendant’s criminal misconduct.” See United States

v. Stoterau, 524 F.3d 988, 998 (9th Cir. 2008) (quoting United States v.

Hicks, 217 F.3d 1038, 1048 (9th Cir. 2000)). Defendants’ interpretation of

relevant conduct as including any conduct even temporally connected to

an offense, by contrast, would inject a “but for” theory of actual causation

into the definition of relevant conduct. 

UNITED STATES v. CRUZ-GRAMAJO 8115
[6] Defendants’ reliance on a mere temporal link to require

the district court to consider the state law sentences relevant

conduct, and therefore not prior criminal history, is insufficient. Section 1B1.3 does not create a scope of relevant conduct that has independent significance. Rather it merely

defines the scope of conduct considered in determining the

base offense level, specific offense characteristics, cross references, and adjustments involved. See § 1B1.3 (background)

(“Subsection (a) establishes a rule of construction by specifying, in the absence of more explicit instructions in the context

of a specific guideline, the range of conduct that is relevant

to determining the applicable offense level.”) (emphasis

added); see also U.S.S.G. § 1B1.2, cmt. n. 2 (“Section

1B1.2(b) directs the court, once it has determined the applicable guideline . . . to determine any applicable specific offense

characteristics (under that guideline), and any other applicable sentencing factors pursuant to the relevant conduct definition in § 1B1.3.”) (emphasis added). Thus, because

Defendants’ state law offenses do not fall within the scope of

§ 1B1.3(a)(2), they fall within relevant conduct for purposes

of § 4A1.2 only if they were incorporated in the guidelines

calculation of the base offense level under § 2L1.2, specific

offense characteristics, cross references, or adjustments to the

instant offense of illegal reentry. An evaluation of § 2L1.2

shows that Defendants’ convictions after unlawfully reentering the country are not incorporated in the offense level calculation. 

3. § 2L1.2

[7] Unlike continuous offenses included in § 3D1.2(d)

(Groups of Closely Related Counts), the total amount of harm

involved in illegal reentry does not vary based on the continuous nature of the offense. In United States v. Carrasco, 313

F.3d 750, 755-756 (2d. Cir. 2002), the Second Circuit concisely stated the harm involved in an illegal reentry offense.

Regardless of the motive: “the ‘harm’ remains the illegal

reentry.” Id. The harm contemplated by the statute, then, is

8116 UNITED STATES v. CRUZ-GRAMAJO
completed at the time the defendant completes the actus reus

of the offense, the voluntary illegal reentry without permission. See United States v. Ayala, 35 F.3d 423, 426 (9th Cir.

1994). Section 2L1.2 provides only one base offense level for

unlawful entering or remaining in the United States. Under

the Specific Offense Characteristics, however, the offense

level is increased if the defendant reentered the country following deportation for certain crimes. The increase in punishment is not dependent on the purpose for the reentry, but “to

reflect the greater culpability of an alien who illegally reenters

after committing” previous crimes in this country. Carrasco,

313 F.3d at 756. For purposes of calculating the offense level,

it is irrelevant what conduct the alien engages in after reentry,

as the harm is already complete.10 See United States v. RiveraVentura, 72 F.3d 277, 281 (2d Cir. 1995) (noting that a

§ 1326 violation is “ordinarily complete as soon as the entry

or attempt is made”); cf. United States v. Marler, 527 F.3d

874, 879 (9th Cir. 2008) (holding that “for criminal history

calculation purposes, the escape was complete, even though

[the defendant] continued to be on escape status”). Defendants’ state law offenses, therefore, were not included in the

calculation of the base offense level or specific offense characteristics. Because Defendants’ state law offenses were not

incorporated into the offense level calculation, and were not

required to be considered relevant conduct under

§ 1B1.3(a)(2), the state law offenses were not “relevant conduct to the instant offense under the provisions of § 1B1.3.”

See § 4A1.2, cmt. n.1. 

10A violation of § 1326, and its applicable guideline § 2L1.2, differs in

its limited consideration of a defendant’s other conduct and harm caused.

For example, the guideline applicable to a violation of 18 U.S.C. § 844(h),

for carrying an explosive device during the commission of a felony (at

issue in United States v. Ressam, 128 S. Ct. 1858 (2008)), supercedes even

the normal enhancements otherwise applicable, noting that the mere temporal requirement under the statute provides sufficient relatedness to the

offense conduct. § 2K2.4(a) & cmt. n.4; see also § 2A4.1(b)(7) (increasing

offense level if victim was kidnapped “during the commission of, or in

connection with, another offense or escape”). 

UNITED STATES v. CRUZ-GRAMAJO 8117
[8] Our determination is consistent with the structure and

interactions of the Guidelines, as well as the policy goal of

avoiding overstating a defendant’s criminal history. There is

no overstatement involved in including Defendants’ prior sentences in criminal history, as they were not included in the

calculation of the offense level, based on properly applied

guidelines. The application note contemplated the possibility

that an offense could occur contemporaneously with the

instant federal offense without necessarily falling under relevant conduct. Moreover, including Defendants’ state convictions in the criminal history calculation preserves “the second

fundamental element of the Guidelines calculus . . . based on

an offender characteristic, namely criminal history.” United

States v. Allen, 488 F.3d 1244, 1256 (10th Cir. 2007) (noting

that “prior acts that are not related to the offense of conviction

may be considered because a ‘defendant’s prior record of past

criminal conduct is directly relevant to’ the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2)” (quoting U.S.S.G.

§ 4A intro cmt.)).11 We affirm the district courts’ assignment

of criminal history points to Defendants’ state law convictions. 

11The importance of this secondary purpose is even more prevalent for

violations of § 1326. Guideline § 2L1.2, application note 6, makes clear

that prior convictions used in calculating a defendant’s specific offense

characteristic level are not excluded from consideration under criminal

history. Defendants’ interpretation of § 4A1.2, application note 1, by contrast, would specifically include these convictions as part of relevant conduct, excluding them from any prior sentence calculation. This is because

under § 1B1.3(a)(4), “any other information specified in the applicable

guideline,” is included within relevant conduct used in determining specific offense characteristics. Section 2L1.2, in turn, includes certain prior

convictions in its specific offense characteristics calculation, rendering it

relevant conduct under § 1B1.3. Certainly the application note did not

mean to include sentences received years earlier as “part of the instant

offense.” See Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 63

(“There is no canon against using common sense in construing laws as

saying what they obviously mean.”). 

8118 UNITED STATES v. CRUZ-GRAMAJO
Our decision is also consistent with the Fifth Circuit’s

approach in United States v. Vargas-Garcia, 434 F.3d 345

(5th Cir. 2005). Vargas-Garcia interpreted the same application note at issue here and held, under plain error review, that

the continuing nature of a § 1326 violation did not preclude

the district court from including other sentences in criminal

history. Id. at 352. Vargas-Garcia focused on “the concept of

separable prior offenses . . . based on ‘different criminal conduct that harmed different societal interests.’ ” Id. at 350

(quoting United States v. Beddow, 957 F.2d 1330, 1339 (6th

Cir. 1992)). The court did not want “the concealed and

extended nature of [illegal reentry to] shield multiple and severable instances of unlawful conduct from their appropriate

consequences at sentencing.” Id. at 349 (internal citations

omitted). This reasoning tracks the purpose of §§ 1B1.3(a)(2)

and 3D1.2(d), outlined above. Where there is no difficulty

identifying severable harms caused by multiple offenses, the

goal of § 4A1.2 in preventing overstating a defendant’s criminal history is not offended. For crimes committed after an

alien unlawfully reenters, but before he or she is “found,”

there is no “pattern of misconduct that cannot readily be broken into discrete, identifiable units that are meaningful for

purposes of sentencing” merely because the crimes were technically contemporaneous. § 1B1.3 (background); see also

Marler, 527 F.3d at 881 (holding that because the defendent

“[did] not point to any evidence that his possession of [a] firearm occurred in conjunction with [his] robbery conspiracy,”

the district court did not err in including the sentence as part

of criminal history rather than relevant conduct). 

B. § 4A1.1(d) Assignment of Points

The district courts also assigned Cruz-Gramajo and

Aguilar-Rodriguez points under U.S.S.G. § 4A1.1(d) for violating § 1326 while under a criminal justice sentence. CruzGramajo and Aguilar-Rodriguez argue these rulings were

erroneous because they were not under any sentences when

they stepped across the border; instead, the sentences at issue

UNITED STATES v. CRUZ-GRAMAJO 8119
were for crimes committed after they reentered. Section

4A1.1(d) directs a district court to add two criminal history

points “if the defendant committed the instant offense while

under any criminal justice sentence, including probation,

parole, supervised release, imprisonment, work release, or

escape status.” An application note equates “the instant

offense” with “any relevant conduct.” See id. cmt. n.4. Therefore, the question is whether Cruz-Gramajo and AguilarRodriguez committed any “relevant conduct” to the § 1326

offense while under the sentences they received for committing crimes after illegally reentering. 

Cruz-Gramajo preserved the issue at the district court and

so we review the district court’s determination de novo.

United States v. Grissom, 525 F.3d 691, 696 (9th Cir. 2008).

We review only for plain error in Aguilar-Rodriguez’s case

because he did not raise the issue below. See United States v.

Olano, 507 U.S. 725, 732 (1993).

[9] Even assuming the district court erred in assigning two

criminal history points to Cruz-Gramajo under § 4A1.1(d), we

need not reach the issue. Cruz-Gramajo had seven criminal

history points assigned based on his prior sentences; the district court’s addition of the two § 4A1.1(d) points brought his

total criminal history points to nine. Both seven and nine

points result in a criminal history category of IV, see U.S.S.G.

Ch.5, Pt. A, resulting in the same Guideline range even

assuming error. Therefore, if any error was committed, which

we do not decide, it was harmless. See United States v. Rutledge, 28 F.3d 998, 1003-1004 & n.7 (9th Cir. 1994). 

[10] We hold that the district court did not err, much less

plainly err, in its assignment of two criminal history points

under § 4A1.1(d) to Aguilar-Rodriguez. In Ayala, we noted

that “[t]o avoid being ‘found in’ the United States, a deported

alien can either not re-enter the United States, or, if he has

already re-entered the United States, he can leave.” 35 F.3d

at 425. Here, Aguilar-Rodriguez committed two separate DUI

8120 UNITED STATES v. CRUZ-GRAMAJO
offenses before he was “found” in the United States. AguilarRodriguez’s first DUI conviction was received in August

2005, after his unlawful reentry. In October 2005, his probation was revoked and a bench warrant was issued. According

to § 4A1.1(d), cmt., n. 4, “[a] defendant who commits the

instant offense while a violation warrant from a prior sentence

is outstanding (e.g., a probation, parole, or supervised release

violation warrant) shall be deemed to be under a criminal justice sentence for the purposes of this provision . . . .” Thus,

while under a criminal justice sentence for the first DUI,

Aguilar-Rodriguez did not leave the country to avoid being

“found.” The district court did not plainly err in assigning the

§ 4A1.1(d) points to Aguilar-Rodriguez. 

AFFIRMED.

PREGERSON, Circuit Judge, dissenting in part and concurring in part:

These three cases were tried separately before three different district courts. They were consolidated before us because

they present common facts and issues. The events in each of

the defendants’ cases occurred in the same order: the defendants (1) were deported from the United States; (2) reentered

the United States illegally; (3) committed state law crimes;

and finally (4) were “found” by immigration officials. 

I would find that each of the three district courts separately

erred in assigning additional criminal history points to the

defendants for state law offenses committed after the defendants illegally reentered the United States, but before each

was “found” by immigration authorities. Furthermore, I

would find that the district court erred in assigning two additional criminal history points to defendant Cruz-Gramajo for

committing an 8 U.S.C. § 1326 offense “while under

[another] criminal justice sentence.” U.S.S.G. § 4A1.1(d).

UNITED STATES v. CRUZ-GRAMAJO 8121
Accordingly, I dissent entirely from the majority opinion’s

Section III A, “Criminal History Calculation,” and also dissent in part from the majority opinion’s Section III B,

“§ 4A1.1(d) Assignment of Points.”

A. Criminal History Calculation1

Under the Sentencing Guidelines, defendants are assigned

criminal history points for prior sentences of imprisonment,

provided those sentences satisfy certain requirements. See

U.S.S.G. § 4A1.1. The Guidelines define a prior sentence as

“any sentence previously imposed upon adjudication of guilt

. . . for conduct not part of the instant offense.” U.S.S.G.

§ 4A1.2(a)(1). Pursuant to the Guidelines then, the district

court may not assign criminal history points for any conduct

that was part of the instant offense. See id. An application

note to § 4A1.2 explains that “[c]onduct that is part of the

instant offense means conduct that is relevant conduct to the

instant offense under the provisions of § 1B1.3 (Relevant

Conduct).” U.S.S.G. § 4A1.2 cmt.1 (emphasis added). Under

U.S.S.G. § 1B1.3(a)(1), “relevant conduct” includes “all acts

and omissions committed . . . by the defendant . . . 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 . . . . ”

(Emphasis added).

The crime of being “found” in the United States pursuant

to § 1326 is considered an ongoing offense, because it “commences with the illegal entry, but is not completed until discovery” by immigration officials. United States v. RuelasArreguin, 219 F.3d 1056, 1061 (9th Cir. 2000). Here, the

defendants each committed state law offenses after their ille1

I have given the two sections of this dissent the same titles as the corresponding sections of the majority opinion. But both Section A and Section

B of this dissent (and the majority opinion) concern criminal history calculations. 

8122 UNITED STATES v. CRUZ-GRAMAJO
gal re-entry, but before being “found” by immigration officials. Because § 1326 is an ongoing offense, the defendants’

state law offenses took place “during the commission of” the

defendants’ § 1326 violations. See U.S.S.G. § 1B1.3(a)(1).

Accordingly, I would find that the district courts should have

treated the state law offenses as “relevant conduct,” as defined

by U.S.S.G. § 1B1.3, and not as criminal history, because the

state law offenses took place “during the commission of” the

§ 1326 violations.

The state law offenses should be considered “relevant conduct” in relation to the § 1326 offenses based on the plain

meaning of the word “during” in § 1B1.3(a)(1). Under the

rules of statutory construction, “the plain meaning of unambiguous language in a guideline provision controls.” United

States v. Valenzuela, 495 F.3d 1127, 1133 (9th Cir. 2007). I

agree with the defendants that the plain meaning of the word

“during” in the definition of “relevant conduct” in U.S.S.G.

§ 1B1.3(a)(1) indicates a temporal relationship, and nothing

more, between the offenses. The term “during” simply indicates a passage of time. Though asserted by the majority, it

is infeasible that by solely employing the word “during,” Congress intended that U.S.S.G. § 1B1.3(a)(1) was meant to

encompass conduct that was both “during” and “in connection

with” the offense of conviction. 

The Supreme Court’s ruling in United States v. Ressam,

128 S. Ct. 1858, 1860-62 (2008), supports the defendants’

plain meaning argument of the word “during.” Though the

Court was addressing a different statute, 18 U.S.C. § 844(h)(2),2

Ressam involved statutory language identical to the Guidelines text at issue in this case. See id. at 1860. The defendant

2

18 U.S.C. § 844(h)(2) requires that “[w]hoever carries an explosive

during the commission of any felony which may be prosecuted in a court

of the United States . . . shall, in addition to the punishment provided for

such felony, be sentenced to imprisonment for 10 years.” (emphasis

added). 

UNITED STATES v. CRUZ-GRAMAJO 8123
in Ressam was convicted of making a false statement on a

customs form, a felony, and of carrying an explosive “during

the commission of” that felony in violation of 18 U.S.C.

§ 844(h)(2).3Id. at 1860. The government presented no evidence to show that carrying the explosive in any way facilitated the false statement. Our court concluded that the phrase

“during the commission of” required both a temporal connection and “a relational element,” and vacated the § 844(h)(2)

conviction accordingly. United States v. Ressam, 474 F.3d

597, 603 (9th Cir. 2007), rev’d, 128 S. Ct. 1858 (2008). 

The Supreme Court reversed our court’s decision, and in so

doing rejected our interpretation of the word “during.” Ressam, 128 S.Ct. at 1862. The Court instead held that the plain

meaning of “during” did not include an “in relation to”

requirement: 

There is no need to consult dictionary definitions of

the word “during” in order to arrive at the conclusion

that respondent engaged in the precise conduct

described in § 844(h)(2). The term “during” denotes

a temporal link; that is surely the most natural reading of the word as used in the statute. Because

respondent’s carrying of the explosives was contemporaneous with his violation of § 1001, he carried

them “during” that violation. 

Id. at 1861 (emphasis added). I believe we should follow the

Supreme Court’s analysis and similarly interpret the word

“during” in § 1B1.3(a)(1) to signify a temporal link only.

Additionally, it seems that by employing the majority opinion’s interpretation of the word “during,” luck will become an

inextricable element of our sentencing process. If a defendant

3The defendant in Ressam entered the U.S. with a trunk full of explosives. Ressam, 128 S. Ct. at 1860. He then falsely filled out a customs

form. Id. Later, authorities searched his car and found the explosives. Id.

8124 UNITED STATES v. CRUZ-GRAMAJO
illegally reenters the country but is not “found” for many

years, and in the meantime commits a number of state law

offenses, then his criminal history point total under the Sentencing Guidelines will increase. This defendant will serve a

much longer sentence for his § 1326 offense compared to the

sentence he would serve for the same offense if “found” by

immigration authorities the day he illegally reentered. Following the majority opinion’s view, criminal history points will

be allocated based on the arbitrary actions of immigration

authorities rather than the actions of defendants. I believe we

should be punishing defendants for their own actions, and not

the actions of immigration officials.

I further find that each district court’s error in interpreting

the Guidelines was not harmless. The sentence ranges of all

three defendants increased because of their enhanced criminal

history categories. For example, defendant Cruz-Gramajo

received four additional criminal history points for two state

law crimes he committed after he illegally re-entered to the

United States. The four additional points increased his total to

nine. The four additional criminal history points pushed him

from Category III to Category IV, increasing his Guidelines

range from 46-57 months to 57-71 months. The district court

ultimately sentenced Cruz-Gramajo to 57 months of incarceration. The sentence ranges of Aguilar-Rodriguez and Pulido

similarly increased. Given that the binding plea agreements of

all three defendants mandated sentences at the low end of the

appropriate Guidelines range, there is no doubt that the errors

were not harmless. Accordingly, I dissent from Part III A of

the majority opinion.

B. § 4A1.1(d) Assignment of Points

I concur in the majority opinion’s determination that the

district court accurately assigned defendant AguilarRodriguez two additional criminal history points under

U.S.S.G. § 4A1.1(d). Though not addressed by the majority

opinion, under the de novo standard I would hold that the disUNITED STATES v. CRUZ-GRAMAJO 8125
trict court’s assignment of two additional criminal history

points to defendant Cruz-Gramajo pursuant to U.S.S.G.

§ 4A1.1(d) was misguided. Section 4A1.1(d) directs a district

court to add two criminal history points “if the defendant

committed the instant offense while under any criminal justice

sentence, including probation, parole, supervised release, [or]

imprisonment . . . . ” The district court assigned these two

additional points to Cruz-Gramajo pursuant to § 4A1.1(d)

because immigration authorities “found” him in April 2007,

when he was serving time in the Los Angeles County Jail for

grand theft and burglary. 

I believe the district court’s reading of § 4A1.1(d) leads to

absurd results in sentencing Cruz-Gramajo for his § 1326 illegal reentry offense because Cruz-Gramajo was incarcerated

when he was “found” by immigration authorities.4 The majority opinion quotes United States v. Ayala, 35 F.3d 423, 425

(9th Cir. 1994), that “[t]o avoid being ‘found in’ the United

States, a deported alien can either not re-enter the United

States or, if he has already re-entered the United States, he

can leave.” (Emphasis added). Cruz-Gramajo, however, was

in jail, and so could not leave the United States to avoid being

“found.”

5

By assigning two additional points to Cruz-Gramajo pursuant to § 4A1.1(d) in addition to the four criminal history

points the court assigned pursuant to § 4A1.2, the district

court effectively punished Cruz-Gramajo three times for the

same grand theft and burglary offenses he committed in 2006:

4

I agree with the majority that the district court properly assigned criminal history points to Aguilar-Rodriguez under U.S.S.G. § 4A1.1(d) for

violating § 1326 while under a criminal justice sentence. AguilarRodriguez was not imprisoned when he was “found” by immigration

authorities, and thus could have left the United States to avoid violating

§ 1326. 

5We did not address this issue in United States v. Lomeli-Mences, ___

F.3d ___, No. 07-50452, 2009 WL 1476976 (9th Cir. May 28, 2009),

because it did not come to our attention in that case. 

8126 UNITED STATES v. CRUZ-GRAMAJO
(1) Cruz-Gramajo served jail sentences imposed by

a California state court for his 2006 grand theft

and burglary offenses. 

(2) Because Cruz-Gramajo was “found” by immigration authorities after he was sentenced for

grand theft and burglary, the district court

indulged in the legal fiction that Cruz-Gramajo

committed the illegal reentry offense after he

committed the grand theft and burglary

offenses. The district court thus assigned four

additional criminal history points for the grand

theft and burglary convictions in its calculation

of Cruz-Gramajo’s illegal reentry sentence.6

(3) Finally, because Cruz-Gramajo was “found” by

immigration authorities while serving jail time

for grand theft and burglary, the district court

employed a further legal fiction: that CruzGramajo illegally reentered the United States

while serving a jail sentence for grand theft

and burglary. Thus, the district court further

punished Cruz-Gramajo with two additional

criminal history points. 

I find that employing such legal fictions is illogical and unfair

in Cruz-Gramajo’s case. Accordingly, I disagree with the district court’s assessment of two additional criminal history

points for “committ[ing] the [illegal reentry] offense while

under [another] criminal justice sentence.”

7

 U.S.S.G.

§ 4A1.1(d). 

6This issue is discussed in detail in Section A of this dissent. 

7

I also disagree with the four criminal history points the district court

assigned to Cruz-Gramajo pursuant to U.S.S.G. § 4A1.1, as I explained in

Section A of this dissent. 

UNITED STATES v. CRUZ-GRAMAJO 8127
The majority contends that because the two points subtracted from Cruz-Gramajo’s criminal history point total

would not change his criminal history category (it would

remain at IV), any error the district court may have made in

assigning points to Cruz-Gramajo pursuant to U.S.S.G.

§ 4A1.1(d) would be harmless. But I disagree. As I explained

in Section A of this dissent, Cruz-Gramajo should not have

been assigned four criminal history points for the state law

offenses he committed after he re-entered the United States

but before he was “found.” His criminal history total of nine

points should have been reduced by four points, to a total of

five points, thereby reducing his criminal history category

from Category IV to Category III. Then, if an additional two

points were subtracted because the district court erred in

assigning Cruz-Gramajo two additional criminal history

points under U.S.S.G. § 4A1.1(d), Cruz-Gramajo’s criminal

history category would be further reduced to Category II, and

his sentencing range reduced to 41-51 months. Instead, the

district court calculated a sentencing range of 57-71 months.

Cruz-Gramajo’s substantive rights are affected here, when

both issues on appeal are viewed together. Accordingly, I dissent from the majority’s treatment of defendant Cruz-Gramajo

on this issue, but concur in its holding regarding defendant

Aguilar-Rodriguez.

8128 UNITED STATES v. CRUZ-GRAMAJO