FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 10-50096

Plaintiff-Appellee, D.C. No.

v.  2:09-cr-00991-

CAS-1 CRUZ HERNANDEZ-GUERRERO,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Central District of California

Christina A. Snyder, District Judge, Presiding

Submitted January 11, 2011*

Pasadena, California

Filed February 23, 2011

Before: M. Margaret McKeown, William A. Fletcher, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Clifton

*The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2). 

2811
COUNSEL

Kurt Mayer, Deputy Federal Public Defender, Los Angeles,

California, for the appellant.

UNITED STATES v. HERNANDEZ-GUERRERO 2813
Robert E. Dugdale and Stephanie S. Christensen, Assistant

United States Attorneys, Los Angeles, California, for the

appellee.

OPINION

CLIFTON, Circuit Judge:

Cruz Hernandez-Guerrero (“Hernandez”) pled guilty to

being an alien found in the United States following deportation in violation of 8 U.S.C. § 1326(a). He was sentenced to

twenty-seven months of imprisonment. Hernandez appeals

this sentence, contending that the district court erred in using

the date he reentered the country instead of the date he was

actually found in the country when it determined the appropriate range under the now-advisory Sentencing Guidelines. In

particular, when the district court computed Hernandez’s

criminal history score, it added points under U.S.S.G.

§ 4A1.2(e)(1) based upon his 1992 controlled substance conviction, which the court concluded had been imposed within

fifteen years of the commencement of Hernandez’s current

offense. We agree with the district court that it is appropriate

to use the date of reentry—the date when the § 1326 offense

commenced—for purposes of calculating criminal history

points under U.S.S.G. § 4A1.2(e)(1). We also conclude that

the finding by the district court that Hernandez last reentered

the United States on June 29, 1995, was not clearly erroneous.

We thus affirm the sentence imposed upon Hernandez by the

district court.

I. Background

Hernandez was convicted in 1992 for possession for sale of

a controlled substance under California Health & Safety Code

§ 11351 and was sentenced to three years imprisonment. He

was deported on June 7, 1995. Hernandez was subsequently

2814 UNITED STATES v. HERNANDEZ-GUERRERO
found in the United States on June 29, 2009. He was charged

with being found in the United States following deportation

and pled guilty to that charge. The sentence imposed following this conviction is the subject of this appeal.

In calculating Hernandez’s sentence, the district court

assessed three criminal history points based on Hernandez’s

1992 controlled substance conviction. The Guidelines provide

that in calculating a defendant’s criminal history score, three

points should be added for each prior sentence of imprisonment exceeding one year and one month, U.S.S.G.

§ 4A1.1(a), if that prior sentence was imposed “within fifteen

years of the defendant’s commencement of the instant

offense.” U.S.S.G. § 4A1.2(e)(1). 

Adding these three points involved two pertinent rulings by

the district court. First, the court found that the instant illegal

reentry offense commenced on June 29, 1995, the date of

reentry. This date was derived from the Pre-sentence Report

(“PSR”), which stated that after his June 29, 2009 arrest, Hernandez informed Immigration and Customs Enforcement

(“ICE”) officials that “he last illegally re-entered the U.S. via

Calexico, California, on June 29, 1995.” Second, the court

held that because the instant offense commenced on June 29,

1995, the three-year sentence for Hernandez’s 1992 conviction was imposed within fifteen years of the reentry offense

and warranted three criminal history points under U.S.S.G.

§ 4A1.2(e)(1).

II. Discussion

This case permits us to clarify the law in our Circuit concerning the operative date of a 8 U.S.C. § 1326(a) violation

for purposes of calculating criminal history points under

U.S.S.G. § 4A1.2(e)(1). Hernandez argues that in calculating

his criminal history score, the district court should have used

the 2009 date he was actually found in the United States,

instead of the 1995 date on which he allegedly reentered the

UNITED STATES v. HERNANDEZ-GUERRERO 2815
country. He also contends that the government did not establish that June 29, 1995 was his last reentry date.

This court reviews the district court’s interpretation of the

Sentencing Guidelines de novo, United States v. GarciaJimenez, 623 F.3d 936, 940 (9th Cir. 2010), and the district

court’s application of the Sentencing Guidelines to the facts

for an abuse of discretion, United States v. Cruz-Gramajo,

570 F.3d 1162, 1167 (9th Cir. 2009). Factual findings are

reviewed for clear error. Id. The district court’s evaluation of

the reliability of evidence presented at sentencing is reviewed

for an abuse of discretion. See United States v. Berry, 258

F.3d 971, 976 (9th Cir. 2001).

A. Operative Date for an Illegal Reentry Offense

[1] This Court has “repeatedly . . . held that the crime of

being ‘found in’ the United States after deportation is a continuing offense which continues so long as the alien remains

in the country. That is, the offense commences with the illegal

entry, but is not completed until discovery.” United States v.

Reyes-Pacheco, 248 F.3d 942, 946 (9th Cir. 2001) (internal

citations omitted). We have also observed that “presence at

any time subsequent to the entry is a crime subject to the penalties then in effect.” United States v. Guzman-Bruno, 27 F.3d

420, 423 (9th Cir. 1994). 

[2] Although we have used the “reentry” date for Sentencing Guidelines calculations in certain circumstances and have

used the “found-in” date in others, we have never held that

one date must always be used instead of the other. Two of our

cases illustrate this point. 

In Reyes-Pacheco, the defendant was found by authorities

in 2000 but admitted to reentering the United States in 1996.

248 F.3d at 944. The sentencing court used the 1996 reentry

date instead of the 2000 found-in date when computing criminal history points under U.S.S.G. § 4A1.1(d) for the § 1326

2816 UNITED STATES v. HERNANDEZ-GUERRERO
violation. Id. Reyes-Pacheco received two points for committing the offense while on parole or less than two years following release from imprisonment. Id. at 946. Reyes-Pacheco

was on parole for a prior offense in 1996 but, in 2000, was no

longer on parole or within two years of being released. On

plain error review, we affirmed. We held that “[g]iven the

continuing nature of the ‘found in’ offense, ‘part of the instant

offense’ . . . occurred on April 11, 1996,” and it was not error

to use the 1996 date. Id.; see also United States v. Marler, 527

F.3d 874, 879 n.3 (9th Cir. 2008) (discussing the continuing

nature of a § 1326 violation).

Our decision in United States v. Ramirez-Valencia, 202

F.3d 1106, 1110 (9th Cir. 2000), affirmed the district court’s

use of the found-in date instead of the reentry date in determining the defendant’s sentence, but in a different context.

Ramirez-Valencia was convicted of alien smuggling in violation of 8 U.S.C. § 1324(a)(2) in 1986 and was deported in

1988. Sometime before September 1994, the defendant illegally reentered and remained in the United States. In 1996,

after he had reentered the country, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act

(“IIRIRA”), which reclassified alien smuggling as an aggravated felony. Then, in 1998, the defendant was found and

pled guilty to being a deported alien found in the United

States under 8 U.S.C. § 1326. At sentencing for the § 1326

offense, the district court treated his 1986 conviction for alien

smuggling as an aggravated felony and increased the offense

level accordingly. Id. at 1108. The defendant argued that

because he reentered the country prior to September 1994,

before the IIRIRA reclassification took effect, the court

should not apply the sentencing enhancement. Id. at 1110.

Although we agreed that IIRIRA should not be applied retroactively, we concluded that because a § 1326 offense was a

continuing offense, the defendant violated § 1326 on the date

he was found, which was in 1998, after IIRIRA became effective. We upheld the sentencing enhancement based on the

found date, not the reentry date, and thus there was no retroUNITED STATES v. HERNANDEZ-GUERRERO 2817
active application of IIRIRA. Id.; see also United States v.

Mendoza-Iribe, 198 F.3d 742, 744 (9th Cir. 1999) (concluding

that because § 1326 is a continuing offense, it did not violate

the ex post facto clause to apply the IIRIRA amendments to

a defendant who had reentered the country prior to the amendments but who had been found after the amendments).

[3] Reyes-Pacheco and Ramirez-Valencia, together, stand

for the principle that a defendant’s presence in this country

after an unlawful reentry may give rise to additional penalties.

See Guzman-Bruno, 27 F.3d at 423. The statute’s plain language makes it a crime to enter or be “at any time found in”

the United States. Id.; 8 U.S.C. § 1326(a)(2). The continuous

nature of the § 1326 offense puts defendants on notice that

they are in violation each day they remain illegally in the

United States. 

[4] The context of each case will determine which date

during the continuous time period is relevant for calculating

criminal history points for a § 1326 violation. For instance, in

Reyes-Pacheco, the question was whether the defendant had

committed the reentry offense while on parole. 248 F.3d at

946. Therefore, the earlier portion of his § 1326 offense that

overlapped with the parole period was the pertinent time

period. Id. In contrast, in Ramirez-Valencia, the later part of

the § 1326 offense was the relevant time period because it

occurred after IIRIRA took effect. 202 F.3d at 1110. 

Our decision in United States v. Maria-Gonzalez, 268 F.3d

664 (9th Cir. 2001), is consistent with this understanding. In

that decision we summarized Ramirez-Valencia to say that

“the offense of being found in the United States occurs on the

date the defendant is apprehended.” Id. at 668. That statement

must be understood in its context. Like Ramirez-Valencia,

Maria-Gonzalez was concerned with applying IIRIRA to a

§ 1326 violation that commenced prior to IIRIRA’s enactment

but continued past IIRIRA’s effective date. We did not say

that the offense of being found in the United States occurred

2818 UNITED STATES v. HERNANDEZ-GUERRERO
only on the date of apprehension. Nor could we have, for the

offense is a continuing one. Maria-Gonzalez did not distinguish Reyes-Pacheco and did not purport to redefine the law

on this issue.

[5] For the purpose of calculating criminal history points

under U.S.S.G. § 4A1.2(e)(1) based on a prior conviction and

sentence, the issue raised by the case at hand, the operative

date of a § 1326 offense is the date of reentry, as we held in

Reyes-Pacheco. Under U.S.S.G. § 4A1.2(e)(1), the sentencing

court counts a prior offense and adds three points only if the

prior sentence “was imposed within fifteen years of the defendant’s commencement of the instant offense.” Id. (emphasis

added). As noted above, the offense of being found in the

United States “commences with the illegal entry.” ReyesPacheco, 248 F.3d at 946. The district court properly based

Hernandez’s criminal history score on his reentry date instead

of the date he was found and arrested.

B. Calculation of Criminal History Score

We next turn to whether the district court clearly erred in

making the factual finding that Hernandez last reentered on

June 29, 1995. According to the PSR, Hernandez informed

ICE officials that he last reentered the country on June 29,

1995. This statement was not challenged or controverted by

any other evidence.

[6] The district court is entitled to rely on an unchallenged

portion of a PSR. See United States v. Ameline, 409 F.3d

1073, 1085 (9th Cir. 2005) (en banc) (“[T]he district court

may rely on undisputed statements in the PSR at sentencing.”); United States v. Charlesworth, 217 F.3d 1155, 1160-

61 (9th Cir. 2000) (holding that information in a PSR was sufficient because the defendant offered no evidence to contradict the PSR and instead only argued that the government had

not sustained its burden of proof). In this case, not only was

UNITED STATES v. HERNANDEZ-GUERRERO 2819
the date provided by the PSR unchallenged, but the information was provided by Hernandez himself. 

[7] Contrary to Hernandez’s insistence that the government

provide “exact proof” that he was in the country continuously

after June 29, 1995, a court may find continuous presence in

the United States by a preponderance of the evidence even if

“the government’s evidence does not account for [the defendant’s] presence in the United States at every moment since

[the reentry].” Garcia-Jimenez, 623 F.3d at 941-42. Here, the

PSR presented evidence establishing Hernandez’s continuous

presence in the United States in the form of employment history and dates of arrest in the United States, and established

motivation to stay in the country to remain with his family.

See id. at 941. Nothing in the record indicates Hernandez was

anywhere but in the United States during the relevant time

period. Accordingly, the court did not clearly err when it concluded that the PSR, uncontradicted by any other evidence,

established by a preponderance of the evidence that Hernandez last reentered the United States and commenced the

instant offense on June 29, 1995. 

[8] The three-year sentence imposed in 1992 was imposed

within fifteen years of the 1995 commencement of the instant

offense. Therefore, the district court’s calculation under the

Sentencing Guidelines was correct.

AFFIRMED.

2820 UNITED STATES v. HERNANDEZ-GUERRERO