                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 20 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-50606

               Plaintiff - Appellee,             D.C. No. 2:09-cr-00755-ODW

  v.
                                                 MEMORANDUM *
SERGIO VILLANUEVA MENDOZA,
a.k.a. Sergio Macias,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Otis D. Wright, District Judge, Presiding

                            Submitted January 10, 2011 **

Before:        BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.

       Sergio Villanueva Mendoza appeals from the 51-month sentence imposed

following his guilty-plea conviction for being an illegal alien found in the United




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

      Mendoza contends that the district court plainly erred in determining that he

should receive two criminal history points pursuant to U.S.S.G. § 4A1.1(d) for

committing the instant offense while serving a criminal justice sentence.

According to Mendoza, because he was in prison for another offense and unable to

leave the country when he was found by immigration officials, the commission of

the section 1326 offense was beyond his control and he is improperly being further

punished solely for his status rather than for committing a new crime.

      The district court did not plainly err. A “found in” offense is a continuing

offense that begins when the defendant reenters the country and continues until

discovery by immigration officials. See United States v. Reyes-Pacheco, 248 F.3d

942, 946 (9th Cir. 2001). Mendoza was not required to be voluntarily in the

country at the time he was found; it was sufficient that he reentered the country

voluntarily. See United States v. Ortiz-Villegas, 49 F.3d 1435, 1437 (9th Cir.

1995) (“We also reject Ortiz-Villegas’ argument that he did not have the required

intent to be ‘found in’ the United States because he was involuntarily incarcerated

within United States’ borders at the time he was located.”). In addition, Mendoza’s

inability to leave the country and avoid being found was due to his own voluntary


                                          2                                    09-50606
conduct in committing another crime. See id. at 1437 n.2. He therefore committed

the instant offense while under a criminal justice sentence. See U.S.S.G. §

4A1.1(d).

      AFFIRMED.




                                         3                                    09-50606
