USA vs. Santana-Castellano, (5th Cir. 1996)

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 95-20189 (Summary Calendar) UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ZEFERINO SANTANA-CASTELLANO, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Texas January 25, 1996 Before JOLLY, JONES, and STEWART, Circuit Judges.

STEWART, Circuit Judge: Santana-Castellano (Santana) pled guilty to being found unlawfully in the United States on June 7, 1994, after having been deported, in violation of 8 U.S.C. 1326. Because he had previously been convicted of committing an aggravated felony, he was sentenced to 62 months confinement and to a three-year term of supervised release, sentence to be served consecutive to the sentence he was already serving at the Texas Department of Crimina l Just ice fo r injury to a child. He appeals his sentence, ar guing that the district court erred in applying sentencing guidelines §§4A1.1(d) and 5G1.3(a) whic h added t wo criminal history points and imposed a consecutive sentence. For the following reasons, we AFFIRM.

FACTS In June of 1980, Santana was convicted of importing approximately 70 pounds of marijuana into the United States, an aggravated felony as defined by the Immigration A ct. 8 U.S.C. 1101 (43)(B). He was depo rt ed in 1987. In August of 1992, he was again deported after illegally reentering. Then, in April of the following year, he was arrested in the United States for the offense of injury to a child. He was convicted of that offense in Texas state court, and sentenced to five years confinement at TDCJ. While serving his state sentence at TDCJ, Santana was interviewed by an agent of the Immigration and Naturalization Service (§1326 which dictates that it is a crime for an alien who has been arrested and deported to be §4A1.1(d) for having committed the offense of reentering while unde r a st at e sentence of imprisonment. The PSR also Santana filed a timely no t ice o f appeal, claiming that the two point criminal history enhancement should not hav e been applied because he committed the criminal reentry prior to his prosecution and sentence for injury to a child, not during his incarceration in state prison. He also argues that §5G1.3(a) is inapplicabl e because he was not serving a term of imprisonment when he crossed the border.

DISCUSSION A sentence will be upheld on review unless it was §5G1.3(a) and 4A1.1(d) were co rrect ly applied, we must first consider when exactly Santana committed the §1326 offense of “being found in” the United States: when he was found in TDCJ or when he entered illegally. Santana argues that the district court erred in finding that his offense of illegal reentry was an offense which continued until he was found by INS agents.

The clear language in 8 U.S.C. 1326(a)(2) provides three separate occasions upon which a deported alien may commit the offense: 1) when he illegally enters the United States: 2) when he attem pts to illegally enter the United States; or 3) when he is at any time found in the United States.

United States v. Gonzales , 988 F.2d 16, 18 (5th Cir.), cert. denied , U.S., 114 S. Ct. 170, 126 L.Ed. 2d 129 (1993). This court has held that the guidelines in effect at the time the deported alien is found are the appropriate source for determining a sentence because of the §1326(a)(2). G onzales , 988 F.2d at 18, accord United States v. Rodriguez , 26 F.3d 4, 8 (1st Cir. 1994). Likewise, the five year statute of limitations under §1326 begins to run at the time the alien is “found,” barring circumstances that suggest that the INS should have known of his presence earlier, such as when he reentered the United States through an official border checkpoint in the good faith belief that his entry was legal. U nited States v. Gomez 38 F.3d 1031, 1035 (8th Cir., 1994); accord United States v. DiSantillo , 615 F.2d 128, 132 (3d Cir. 1980). The purpose of the “found in” provision is to provide punishment for an alien who, following his deportati on ... and without the permission of the Attorney General... having reentered r emains illegally in this country until his presence is discovered. U nited States v. Whittaker , 999 F.2d 38, 41 (2d Cir. 1993). This provision prohibits deported aliens, who have illegally reentered the United States, from remaining in the co untry. U nited States v. Ortiz-Villegas , 49 F.3d 1435, 1436 (9th Cir.), cert. denied , U.S., 116 S. Ct. 134 (1995).

Santana argues that the district court adopted a §1326 violation is not a “continuing” offense. After all, his act of entering the United States occurred at a certain point in time; it did not continue as would a convicted felonÂ’s possession of a firearm. See United States v. Maxim , 55 F.3d 394, 397 (8th Cir.), cert. denied ,U.S., 116 S. Ct. 265 (1995). Moreover, he certainly could not leave the United States while incarcerated in the TDCJ.

Nevertheless, Santana’s argument is unavailing. “A continuing offense is a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy.” U nited States v. Midstate Horticultural Co ., 306 U.S. 161, 166, 59 S. Ct. 412, 414, 83 L. Ed. 563 (1939)(citations omitted).

In line with this definition, both illegal possession of firearms and ongoing child po rnography have been found to be continuing offenses.

Maxim , 55 F.3d at 397.

Santana attem pts to distingu ish his situation, arguing that in D iSant illo , the Third Circuit applied continuing offense analysis to §1326 and held that being “found in” the United States is not a continuing offense.

The facts of that case are easily distinguishable from the situation in the case at bar. DiSantillo entered the country at a United States immigration service port of entry with a visa issued by the Department of State, and was unaware that his entry was illegal. D iSant illo , 615 F.2d at 132-33. The Third Circuit used continuing offense analysis to determine whether the §1326, and concl uded that, i n DiSantillo Â’s circumstances, it did not. However, in instances where the deported alien surreptitiously enters the country, and is later discovered by the INS, the statute of limitations does not begin to run until his presence as well as the illegal status of that presence is discovered by the INS. U nited States v. Gomez , 38 F.3d 1031, 1036 (8th Cir. 1994); DiSantillo , 615 F.2d at 132 (dicta).

Adopting the reasoning used in Gomez , we hold that a previously deported alien is “found in” the Unit ed States when his physical presence is discovered and noted by the immigration authorities, and the knowledge of the illegal it y o f his presence, through the exercise of diligence typical of law enforcement authorities, can reasonably be attributed to the immigration authorities.

Gomez , 38 F.3d at 1037. Where a deported alien enters the United States and remains here with the knowledge that his entry is illegal, his remaining here until he is §1326, which is obviously intended to extend the definition of the offense to include those situations where the alien is the only one who knows the precise date of his surreptitious entry and knows that he has violated the law in reentering the country after he has been arrested and deported. See G omez , 38 F.3d at 1035. Additionally, this interpretation gives effect to the entire statutory phrase at issue, rather than just two words, because §1326 is to include “any alien who . . . is a t any time found in” the United States.

To apply this reasoning to the case at bar, Santana illegally reentered the United States in 1992. His physical presence was not noted by immigration authorities at the time of his reentry , nor could awareness o f his presence be reasonably attributed to them until his interview with the INS agent in TDCJ. Thus, he was §1326 applied to a deported alien whose presence in a California state prison was discovered by an INS agent. United States v. Ortiz-Villegas , 49 F.3d 1435 (9th Cir. 1995).

Section 4 A1.1(d) provides that two points should be added to the criminal history category §4A1.1, comment. (n.4). Thus, the §4A1.1(d) two-point enhancement for purposes of criminal history calculation is appropriate where a continuing offense begins before the offense for which the defendant is under a criminal justice sentence because “[a] continuing offense, by its very nature, does not terminate until the date of the indictment or the voluntary termination of the illegal activity.” U n ited States v. Maxi m , 55 F.3d 394, 397 (8th Cir. 1995).

Santana pleaded guilty to the charge that §1326. On that dat e, Sant ana was imprisoned in the TDCJ-ID. Because a §4A1.1(d).

Santana further argues that §5G1.3(a) is inapplicable because he was not serving a term of imprisonment when he crossed the border. The sentencing court has discretion to impose a concurrent or consecutive sentence on a defendant who is already subject to an undischarged term of imprisonment. 18 U.S.C. 3584(a). U nited States v. Hernandez , 64 F.3d at 179, 182 (5th Cir. 1995). In exercising that discretion, the court must consider t he applicable guidelines and policy statements in effect at the time of sentencing. 18 U.S.C. § 3553(a); H ernandez , 64 F.3d at 182.

S ection § 5G1.3 § 3584.§5G1.3, comment (backg§1326 continued until he was § 5G1.3(a) or under (c).

Thus, because Santana, for the purposes of sentencing , was §4A1.1(d) enhancement as well as the consecutive sentence pursuant to U.S.S.G. §5G1.3(a) are AFFIRMED.

1 (a) Subject to subsection (b), any alien who (1) has been arrested and deported or excluded and deported, and thereafter (2) enters, attem pts 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 or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alienÂ’s reapplying for admission; . . . Shall be fined under title 18, United States Code, or imprisoned not more than 2 years or both. (b) not withstanding subsection (a), in the case of any alien described in such subsection (1) whose deportation was subsequent to a conviction for commission of three or more misdemeanors involving drugs, crimes against the person, or both, or a felony (other than an aggravated felony), such alien shall be fined under title 18, United States Code, imprisoned not more than 10 years, or both; or (2) whose deportation was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such title, imprisoned not more than 20 years, or both. (emphasis added)

2 U.S.S.G. §4A1.1(d) provides for a two point enhancement of the criminal history category if the defendant committed the instant offense while under any criminal justice sentence. 3 U.S.S.G. §5G1.3(a) provides that §5G1.3(c), which dictates that a consecutive sentence be imposed to the extent necessary to achieve a reasonable inc remental punishment. At sentencing, Santana argued that the two-point criminal history enhancement under §4A1.1(d) was inapplicable because he was not under a state sentence when he illegally reentered the United States. 2 The district court fo und t hat §4A1.1(d) applied because Santana was §5G1.3(a). U.S.S.G.§5G1.3(a) requires a consecutive sentence, while §5G1.3(c) allows the ju dge so me discretion in determining how much of a sentence shall be consecutive

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