### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-10669

UNITED STATES OF AMERICA, Plaintiff - Appellee
v. LORENZO FLORES-ALEJO, Defendant - Appellant

Appeal from the United States District Court f or the Northern District of Texas USDC No. 4:11-CR-190-1

Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges. PER CURIAM: * Defendant-Appellant Lorenzo Flores-Alejo—a p reviously deported alien—was found by immigration officials in a Texas jail following his conviction and sentencing for a s tate-law offense. He p led guilty to illegal reentry under 8 U.S.C. § 1 326. At s entencing, the district court increased his Guidelines c riminal history s core because he was under a criminal justice s entence when immigration o fficials f ound h im. On appeal, he argues that applying th e c ri m i n al history adjustment violated the Eight h A m e ndment prohibition on cruel and U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D May8, 2013 Ly l e W . Cay ce Clerk

* P urs uant to 5 T H C I R C U I T R UL E 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances set f orth in 5 T H C I R C U I T R UL E 47. 5. 4. Case: 12-10669 Document: 00512235656 Page: 1 Date Filed: 05/08/2013No. 12-10669

unusual punishment and the Fifth Amendment d ue process guarantee. For the reasons that follow, we AFFIRM the district court’s judgment.

I. FACTUAL AND PROCEDURAL HISTORY On July 4, 2010, police in Arlington, Texas, arrested Defendant-Appellant Lorenzo Flores-Alejo for driving while intoxicated with a child passenger. Tex. Penal Code An n . § 4 9 .045. Flores was convicted and sentenced to three years’ imprisonment. While he was awaiting transfer t o state prison to serve this sentence, agents of U.S. Immigration and C u s t o ms Enforcement (ICE) disc o v e red him i n Tarrant County Jail. Immigration records showed that Fl o r e s

—a M exican national—had illegally entered the U n ited State s th r e e ti m e s between 1993 and 2000 , a n d had been ordered removed o r granted v oluntary return each time. He reentered this country (after having b een ordered r emoved) two months before his DWI arrest. Flores was charged in a single c ount under the part of 8 U.S.C. § 1326(a) that p r o vides punishment for an alien who has b een “found in” the United States after having been deported. The government also alleged that Flores was subject to an i n c r e a s e d statutory m a ximum punishment because he had committed certain crimes b efore his previous deportation. 8 U.S.C. § 1326(b)(1), (2). Flores pled guilty without a p lea agreement. In the “Factual R e sume” underlying his plea, he stipulated that he had been discovered in Tarrant County Jail. The probation of

f i c e r recommended increasing Flores’s criminal history

score by two points under the Sentencing Guidelines because h e had been found i n thi s country “while under [a] criminal justice sentence”—nam e ly , th e s e nt e n c e impo s e d f

o r his DWI c onviction. U.S.S.G. § 4A1.1(d) ( 2011). Flores objected on two grounds. First, he argued that § 4A1. 1 ( d) d oes not apply when an illegalreentry d efendant is found by immigration o fficials while h e is in s tate custody. This ar g u m e n t was foreclosed b y o ur decision in United States v. SantanaCastellano, 74 F.3d 5 93 (5th C ir. 1996). He also argued that applying § 4A1.1(d)

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would violate th e Fifth and Eighth Amendments by increasing his punishment based on an involuntary act that bore no relation to his culpability—remaining in the United States due to his incarceration. The district court overruled Flores’s objections. The two-point § 4A1.1(d) adjustment increased his criminal history s core to thirteen, which raised his Criminal H istory C ategory from V to VI. Abs e nt the adjustment, h is advisory sentencing range would have been 7 0 to 87 months’ imprisonment instead of 77 to 96 months. U.S

. S.G. ch. 5 pt. A

. The di strict c ourt sentenced him to 96 months’ imprisonment, explicitly limiting the sentence to the top o f the Guidelines range. The court stated, however, that “a sentence above that would be entirely appropriate under the circumstances.” Flores timely appealed. II. STATUTORY AND GUIDELINES PROVISIONS A. Section 1326 “The c lear language in 8 U

. S

. C

. § 1 326(a)(2) provides three separate occasions u pon w hich a d eported alien may commit [ an illegal-reentry] offense: 1) when he illegally enters the United States; 2) when he attempts to illegally enter the United S tates; or 3) when he is a t any time found in the United States.” Santana-Castel l a n o , 7 4 F .3d at 597; accord United States v . MendezCruz , 329 F.3d 885, 888–89 (D.C. Cir. 2003). Flores was charged under the “found in” prong, w hich “prohibits deported alie n s , w h o h ave illegally reentered the United S tates, from remaining in the country.” Santana-Castellano , 74 F.3d at 5 97. In Santana-Castellano , we held that a p e rson who violates the “found in” prong commits a continuing offense that begins when he enters this country: Where a deported alien enters the United States and remains here with the knowledge that his entry i s illegal, h is remaining h ere until he is “found” is a continuing o ffense because it is “an unlawful act set on foot by a s i ngle impulse a n d operated by an unintermittent

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fo r c e ,” t o use th e Supreme Court’s l a nguage. See United States v. Midstate Horticultural Co. , 306 U.S. 161, 166 ( 1939). That “force” is the alien’s knowledge that his e ntry is i llegal due to his prior deportation, and his apparent intent to remain i n the U nited S tates. Id. at 598 (citation altered). We further held that this c ontinuing o f f e n se ends only when immigration o fficials discover the violator’s unlawful presence. Id. A “found in” offense thus is i nitiated by, but separate from, the act o f reentering. See United States v. T ovias-Marroquin , 218 F.3d 455, 457 (5th C i r . 2 000) (“A conviction under § 1326 f o r being ‘found in’ the United States necessarily requires that a defendant comm i t a n a ct: he must r e-enter the United States without permission

. . . after bei n g deported.” (citation and internal quotation marks omitted)); accord United States v. Castrillon-Gonzalez , 77 F

. 3d 403, 406 (11th Cir. 1996). This construction p revents a d eported alien from avoiding liability under § 1326 s imply b y e l u d ing immigration authorities until the limitations period has run a s t o the act of reentering. Santana-Castellano , 74 F.3d at 598. B. Section 4A1.1(d) Section 4A1.1(d) provid e s : “ Ad d 2 [criminal history] p o ints if the defendant committed the ins t a n t o ffense w hile under any criminal justice sentence, including probation, parole, s u pervised r elease, imprisonment, work release, or escape status.” This p r o v i s i o n applies “if the d efendant committed any part of the i n stant o ffense ( i .e. , any r elevant conduct) while u nder any criminal justice

s e n t e n ce.” U.S.S.G. § 4A1.1 cmt. n.4. I n Santana-Castellano , w e affirmed § 4A1.1(d)’s application to a deported alien who had been found while serving a state p rison sent e n c e . 74 F.3d at 598. We r easoned that because his § 1326 offense continued until immigration officials found him, part of it had occurred while he was under a criminal justice sentence. I d.

4 Case: 12-10669 Document: 00512235656 Page: 4 Date Filed: 05/08/2013No. 12-10669 III. DISCUSSION Flores argues that appl y i n g § 4A1.1(d) t o h is Guidelines calculation violated the E ighth and Fifth Amendments. We review a pro p erly preserved constitutional challenge de novo. See United States v. Newson , 515 F.3d 374, 376 (5th Cir. 2008). 1 A. Actus reus At the h e a r t o f Flores’s appeal is his contention th at the Constitution prohibits a defendant from b eing punished—or in his case, f rom being subjected to increased punishment—for an involuntary act. He relies on Robinson v. Californ i a , 370 U.S. 660, 660 n.1, 667 ( 1962), i n which the Supreme Court reversed the petitioner’s conviction under a statute that criminalized the status of “be[ing] addicted to the use of narcotics.” I mprisonment for s u c h a n offense “inflicts a cruel a nd unusual punishment” because even i f a violator became addicted to narcotics through prior, voluntary u se, “proo f o f the actual use of narcotics” was n o t r e q uired to convict. Id. at 6 65, 667. B ecause the statute imposed criminal penalties for being afflicted with “ an i l l n ess which may be contracted innocently o r involuntarily,” it could not withstand c o n s titutional scrutiny. 2 Id. at 667.

1 New son concerned a s ep aration- of-p ow ers challenge to a legis latively am end ed G uid elines p rovis ion, and theref ore is not s trictly analogous to the ins tant m atter. We have f ound no ap p ellate d ecis ion that d is cus s es the correct s tand ard of review f or a n as - ap p lied
cons titutional challenge to a G uid elines p rovis ion und er an advis ory s entencing regim e. See U ni ted Sta tes v . Booker , 543 U. S. 220, 245–46 ( 2005) ; cf

. U ni t ed Sta tes v . D e Jongh , 937 F

. 2d 1, 5–6 ( 1s t Cir. 1991) ( ap p lying de novo review to a pre- Booker cons titutional challenge)

. We
w ill not attem pt to d is cern the theoretical mechanics of s uch a challenge p os t- Booker , how ever, becaus e the p arties have not brief ed this is s ue, the p arties agree ( albeit s um m arily) that d e novo review ap p lies , and Flores ’s challenge f ails even und er this s tand ard

.

2 The Robi nson Court d id not hold that it w as irrelevant w hether the d e f e nd ant had
us ed narcotic d rugs ; it s im p ly cons id ered the cas e to be one in w hich t h e d e f end ant had not “touched any narcotic d rug w ithin” Calif ornia. See 370 U

. S. at 667. The Court d id s o becaus e the jury returned a general verd ict that d id not require it to f ind that R obins on had actually
us ed d rugs
. See i d. at 662–63, 665; cf

. Strom berg v . Ca l if

orni a , 283 U

. S. 359, 367–70 ( 1931)

. Accord ingly, Flores is w rong to inf er f rom Robi nson that “w hat the d ef end ant hap p ens to have 5 Case: 12-10669 Document: 00512235656 Page: 5 Date Filed: 05/08/2013No. 12-10669

Robinso n s u b s e quently has been interpreted to mean that, under the Eighth A mendment, “criminal penalties may be i n flicted only if the accused has committed some act, h as engaged in s o m e b e havior, which s ociety has an interest in preven t i n g , o r perhaps in historical common law terms, has committed some actus reus .” Powell v. Texas , 392 U

. S. 5 14, 533 ( 1968) (plurality opinion) (Marshall, J .). Extending t h i s r easoning, Flores a rgues that a pplying § 4A1.1(d) because he r emained in the United Sta t e s w h i l e under a c riminal justice sentence was impermissible because Texas o fficials actively prevented him from leaving this country and thereby ending his § 1326 offense. See United States v. Ayala , 35 F.3d 423, 425 (9th Cir. 1994) (“To avoid being ‘found in’ the United States, a deported alien can either not r e-enter the United States or, if he has already re-entered the United States, he can leave.”). Flores misapprehends the nature of the “relevant conduct” that t riggered § 4A1.1(d)’s application to his Guidelines calculation. U.S.S.G. § 4A1.1 cmt. n.4. Although some affirmative act is typically required for a c riminal conviction, a failure to a ct i n violation o f a legal duty also can give rise to crim i n a l l iability. See generally Wayne R

. LaFave, Criminal Law § 6 .2 (5th ed. 2 010). This concept is woefully familiar to the American taxpayer, w ho m ay be punished for willfully failing to file a r eturn if required by law to do so. See 26 U.S.C. § 7203; Cheek v. United States , 498 U.S. 192, 201–04 (1991). A § 1326 “found in” offen s e i s n o different. As we discussed in SantanaCastellano , 74 F.3d at 598, a “found in” violation occurs when a deported alien remains in the United States knowing that his continued p resence is unlawful, and he is subsequen t l y found by immigration officials. Stated differently, the deported alien’s reentry immediately gives rise to a duty to leave this country; his apparently inte n t i o n a l failure to do so is unlawful. Id. ; s e e also Ayala , 35

d one in a p articular ca s e” is irrelevant. Our focus in this as - ap p lied challenge is on his cond uct— not the cond uct of a hyp othetical d ef end ant. 6 Case: 12-10669 Document: 00512235656 Page: 6 Date Filed: 05/08/2013No. 12-10669

F.3d at 425. Because an alien’s prior deportation generally imparts to him the knowledge th at reentering a nd s t aying would violate federal law, there will be precious few i nstances in which a violator will be u na w are of his d u ty to leave this co untry after reentry. See Santana-Castellano , 74 F.3d at 598; see also Lambert v. California , 3 55 U.S. 2 25, 229 (1957) (h o l d i n g , w ith respect to an ordinance requiring convicted felons p resent in Los Angeles to register with the
p o lice, that due p rocess required “actual knowledge of the duty to r egis t e r o r proof of the probability of such knowledge and subsequent failure to comply”). In keeping with the c ontinuing nature of Flores’s § 1326 offense, we must view as a whole the voluntary a c t s he committed while i llegally remaining in this country (reentering this country a nd driving while i ntoxicated) and h i s purportedly i nvoluntary act (failing to l eave while in state custody). To be sure, Flores hardly could have satisfied his legal duty to leave this country w hen he

was in the hands of law e nforcement. See LaFave, supra , § 6.2(c) (“[O]ne cannot be c riminally liable for failing to do a n act th at he is physically i ncapable of performing.”). But ne i t h e r c o uld he have failed to recognize that committing a crime i n this country would lik e ly p rolong his unlawful presence. I n effect, Flores argues that he cannot be held re s p o n s ible f or § 4A1.1(d) purposes when his affirmative acts have forced him to commit a n unlawful omission. This is akin to blaming gravity for one’s fall after jumping off a bridge. Our reasoning is n either n ov e l n o r s u rp ri s i n g. In a nother, well-established context, a defendant can be held responsible for occurrences he did n ot directly

cause: A conspirator is liable for co-c o n s pirators’ acts that advance the conspiracy’s illicit objective , e v e n i f h e did not s pecifically know that the coconspirators would c ommit those acts. See Pinkerton v. United States , 328 U.S. 640, 646–48 (1946). This is b e c a use a conspirator, by agreeing t o pursue a criminal objective, has helped to set in motion the events that led to the charged act. See id. at 647 (“The criminal intent to d o the act is established by the

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formation of the c onspiracy. Each conspirator instigated the commission of the crime.”). Similarly, a p reviously d eported alien who reenters the United States and commits a crime undertakes the risk that l aw enforcement o f f i c i a l s w ill prevent him from l eaving. Significantly, a conspirator can absolve himself from Pinkerton liability by withdrawing from the c o nspiracy. U nited States v. Mann , 161 F.3d 840, 859–60 (5th Cir. 1998). Analogizing to the instan t m atter, “withdrawal” would be leaving the country before committing an a ct that brings the deported alien under a criminal justice sentence. Flores further argues that because § 4A1.1(d) would not have been triggered had he been sentenced for his § 1326 o ffense b efore receiving his DWI sentence, approving the guideline’s application here would i mpermissibly give the government control o ver its application in any illegal-reentry case. In other words, a defendant’s punishment would partially depend on a government decision, not h is own c o n d u ct. There is no evidence, however, that a desire to increase Flores’s punishment brought about his DWI arrest and incarceration

or the t iming of I CE’s discovery of h is unlawful p resence. Although p r etextual government decisions th at are m eant to cause increased punishment might “violate[] the principle of fundamental fairness under the d ue process clause of the Fifth Amendment,” United States v. Sandlin , 589 F.3d 749, 758–59 (5th Cir. 2009) (citation omitted), we need not conside r t h i s question to resolve Flores’s as-applied challenge. 3

3 In a recent op inion, the Ninth Circuit rejected m any of the argum ents that Flores has rais ed : Though [the d ef end ant] could not avoid being “f ound in” the U nited States w hile he w as incarcerated , he could have avoid ed com m itting the “f ound in” crim e by not re- entering. As f or the p os s ibility that he m ight have a v o i d e d the [ § 4A1. 1( d) ] enhancem ent had he been rep orted t o I C E when he w as arres ted but bef ore he was convicted f or his grand thef

t, his crim inality w ould not have been any the les s . He w as not s up p os ed to com e back , and he w as not s up p os ed to com m it grand thef t. H e voluntarily too k t h e r i s k of a [ § 4A1. 1( d) ] enhancem ent by com m itting the grand thef t af ter his illegal reentry. 8 Case: 12-10669 Document: 00512235656 Page: 8 Date Filed: 05/08/2013No. 12-10669

B. Penological Justification Flores contends that i n c r e a s i n g his punishment for remaining in this country while in custody violates the Eighth A mendment because it “lack[s] any legitimate penological justification.” See Graham v. Florida , 130 S. Ct. 2011, 2028 (2010). We disagree. Flores argues that applying § 4A1.1(d) pretextually punishes him for his DWI conviction. This i s prohibited, he submits, because a defendant’s prior convictions are already accoun t ed for under § 4A1.1(a)–(c), which provides for increases in a defendant’ s c r i m i nal history s core based on the quantity and severity of his prior criminal sentences. He further contends that, by its terms, § 4A1.1(d) can be invoked to p unish him only for the “instant offense”—i.e., the § 1346 violation, not the DWI offense. Assuming arguendo that these purported p rohibi t i o ns apply here, they have not been violated. Because the district c o u r t w a s p ermitted to consider Flores’s “continuing course of conduct” for § 4A1.1(d) p urposes, U nited States v. Harris , 932 F.2d 1529, 1538–39 (5th Cir. 1991), it properly viewed as “relevant conduct” Flores’s actions during the t i m e h e unlawfully remained in this countr y , i n c l u ding the DWI offense and its foreseeable c onsequences. By committing this o ffense, Flores did not simply prolong his illegal presence in this country; he prolonged it in a way that imposed a b urden on the state ’ s penal

resources. Increasing Flores’s punishment f o r b u rdening the state aligns with the purpose of federal immigration laws, which historically have been aimed at, inter alia , preventing aliens from becoming charges of the state. SeeH.R. Rep. No. 82-1365 (1952), reprinted in 1 9 5 2 U .S.C.C.A.N. 1 653, 1653–74. Thus, applying § 4A1.1(d) did n ot add punishment for the D W I offense itself, but

U ni ted Sta tes v . Reyes- Ceja , N o. 11- 50167, 2013 WL 1285986, at *4 ( 9th Cir. Ap r. 1, 2013)

. The court f u r t h e r held that a d ef end ant violates § 1326 when he “voluntarily return[ s ] to the U nited States or voluntarily rem ain[ s ] af ter an involuntary entry. ” Id. at *3. 9 Case: 12-10669 Document: 00512235656 Page: 9 Date Filed: 05/08/2013No. 12-10669

rather for causing an unnecessary consumption of state penal resources in the

course of his § 1326 vi olation. 4 Moreover, assuming that the district court would have l i mited Flores’s sentence to the high end of the Guidelines range absent the § 4A1.1(d) adjus t m e nt, his term of imprisonment was lengthened by nine months. Relative to the conduct w e h ave discussed, thi s i s n o t “unconstitutionally excessive.” See Graham , 130 S. Ct. at 2021. Flores a lso contends that applying § 4A 1 .1(d) t o a defendant who is in state custody perversely provides him with an incentive to escape from custody before ICE discovers him. This may well be t rue, but then, the c o n d i tions of penal confinement also provid e an incentive to escape before sentence is imposed in a given criminal matter. This does not justify the abolition o f imprisonment as a means of punishment. C. Santana-Castellano Finally, to preserve the issue f o r f u rther review, Flores challenges our holding in Santana-Castellano , 74 F.3d at 598. This issue is foreclosed. See Burge v. Parish of St. Tammany , 187 F.3d 452, 466 (5th Cir. 1999). IV. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s judgment.

4 As Flores correctly notes , this objective w ould not have been achieved if he had been d i s c o ve r e d b ef

ore receiving his D WI s entence. If ICE had d is covered Flores bef ore the s tate court s entenced him , how ever, the governm ent could have p revented the exp end iture of s tate res ources by rem oving Flores to fed eral cus tod y bef ore his D WI s entence began. In any event, w e need not further exp lore this hyp othetical s cenario to ad d res s Flores ’s as -ap p lied c h all e n ge. 10 Case: 12-10669 Document: 00512235656 Page: 10 Date Filed: 05/08/2013