FILED

United States Court of Appeals

Tenth Circuit

October 17, 2008

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JACINTO HERNANDEZ-NORIEGA,

a.k.a. Jose Casada-Morales, a.k.a.

Fernando Colin-Orozco, a.k.a.

Fernando Colin,

Defendant-Appellant.

No. 07-1393

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 07-cr-00210-LTB)

Submitted on the briefs:

Raymond P. Moore, Federal Public Defender, and Vicki Mandell-King, Assistant

Federal Public Defender, for Defendant–Appellant.

Troy Eid, United States Attorney, and Roxane J. Perruso and John M. Hutchins,

Assistant United States Attorneys, for Plaintiff–Appellee.

Before GORSUCH, McKAY, and BALDOCK, Circuit Judges.

McKAY, Circuit Judge.

Defendant pled guilty to being a previously deported alien found within the
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United States in violation of 8 U.S.C. § 1326. At the time he was found in the

United States, he was serving a state term of imprisonment in Colorado. Based

on this fact, the district court added two points to Defendant’s criminal history

score pursuant to USSG § 4A1.1(d), which applies when “the defendant

committed the instant offense while under any criminal justice sentence.” The

court also added a third criminal history point pursuant to USSG § 4A1.1(e),

which applies when, inter alia, the defendant committed the instant offense while

in imprisonment on a sentence of at least sixty days. The court then sentenced

Defendant at the bottom of the calculated Guidelines range. On appeal,

Defendant argues that the court should not have added these criminal history

points because USSG § 4A1.1(d) and (e) should not apply when an alien is

involuntarily incarcerated at the time he is found in the United States. We review

this challenge to the district court’s legal interpretation of the Guidelines de novo. 

See United States v. Todd, 515 F.3d 1128, 1135 (10th Cir. 2008).

Section 1326(a) provides that a previously deported alien who illegally

reenters the country violates the statute when, inter alia, he “is at any time found

in[] the United States.” “In the case of a surreptitious reentry like Defendant’s,

the ‘found in’ offense is first committed at the time of reentry and continues to

the time when the defendant is arrested for the offense.” United States v. RuizGea, 340 F.3d 1181, 1189 (10th Cir. 2003) (internal quotation marks omitted). 

The defendant in United States v. Rosales-Garay, 283 F.3d 1200, 1201 (10th Cir.
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2002), was serving a criminal probation sentence at the time he was found in the

United States. He contended that the district court erred in adding two criminal

history points pursuant to USSG § 4A1.1(d) because he had reentered the United

States prior to being convicted and sentenced by the state court. He argued that it

would be unfair for the application of this provision to depend “upon the

fortuitous timing of when immigration officials ‘find’ [a] defendant.” Id. at 1202.

We rejected this argument, noting that three of our sister circuits had done the

same, and held that because the defendant committed the offense of being found

in the United States while he was serving a state probation sentence, the district

court did not err in adding these two criminal history points.

In the instant appeal, Defendant similarly argues that it would be

unreasonable and unjust to apply USSG § 4A1.1(d) and (e) to a defendant who is

in state custody and has no control over when immigration officials will find him

in the United States. He contends that we should not treat reentry as a continuing

offense for sentencing purposes, and he argues that Rosales-Garay is

distinguishable because the defendant in that case was not physically restrained

by the terms of his state sentence of probation and could have left the country to

avoid being found in the United States, whereas Defendant was physically

restrained by his sentence of imprisonment.

We find Defendant’s arguments unpersuasive. We note that we have

treated the violation of § 1326(a) as a continuing offense for sentencing purposes
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in the past. See Ruiz-Gea, 340 F.3d at 1189. As for Defendant’s attempt to

distinguish Rosales-Garay, we agree with the Third Circuit that, “[a]lthough the

act of returning to the United States must be voluntary, it is not relevant whether

an alien's continued presence in the United States was voluntary at the moment of

discovery.” United States v. Dixon, 327 F.3d 257, 259 (3d Cir. 2003); see also

United States v. Ortiz-Villegas, 49 F.3d 1435, 1437 n.2 (9th Cir. 1995) (noting

that the defendant “was voluntarily in this country at the time that he was

apprehended and convicted of a crime” and that “[h]is inability to depart this

country was of his own making”). We note that two of the three cases relied on

in Rosales-Garay involved a defendant who was serving a sentence of

imprisonment, see United States v. Coeur, 196 F.3d 1344 (11th Cir. 1999); United

States v. Santana-Castellano, 74 F.3d 593 (5th Cir. 1996), and we see no cause to

distinguish Rosales-Garay’s rationale and holding based on the terms of

Defendant’s state sentence. Thus, as in Rosales-Garay, we conclude the district

court did not err in adding points to Defendant’s criminal history score pursuant

to USSG § 4A1.1 where Defendant was serving a state sentence at the time he

was found in the United States. We accordingly AFFIRM Defendant’s

conviction and sentence.