                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,              
                Plaintiff-Appellee,          No. 07-50381
               v.                             D.C. No.
GUSTAVO CRUZ-GRAMAJO,                      CR-07-00479-R-01
             Defendant-Appellant.
                                       
        Appeal from the United States District Court
           for the Central District of California
         Manuel L. Real, District Judge, Presiding


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                v.
                                             No. 07-50477
RAY AGUILAR-RODRIGUEZ, also
known as Renaldo Aguilar                      D.C. No.
                                           CR-07-00900-RGK-
Rodriguez, also known as
Benjamin Aguilar, also known as                   001
Rey A. Rodriguez, also known as
Ray Rodriguez,
              Defendant-Appellant.
                                       
        Appeal from the United States District Court
           for the Central District of California
        R. Gary Klausner, District Judge, Presiding




                            8097
8098           UNITED STATES v. CRUZ-GRAMAJO



UNITED STATES OF AMERICA,                   No. 07-50534
                 Plaintiff-Appellee,
                v.                            D.C. No.
                                           CR-07-00424-AHM
ERNESTO PULIDO,
                                               OPINION
             Defendant-Appellant.
                                       
        Appeal from the United States District Court
            for the Central District of California
         A. Howard Matz, District Judge, Presiding

                  Argued and Submitted
          October 24, 2008—Pasadena, California

                    Filed June 26, 2009

    Before: Harry Pregerson, Cynthia Holcomb Hall and
             N. Randy Smith, Circuit Judges.

                  Opinion by Judge Hall;
Partial Concurrence and Partial Dissent by Judge Pregerson
               UNITED STATES v. CRUZ-GRAMAJO           8101




                        COUNSEL

Phillip I. Bronson, Sherman Oaks, California, for defendant-
appellant Cruz-Gramajo; Davina T. Chen, Deputy Federal
Public Defender, for defendant-appellant Aguilar-Rodriguez;
Michael Tanaka, Deputy Federal Public Defender, for
defendant-appellant Pulido; Gia Kim Deputy Federal Public
Defender, for defendants-appellants Aguilar-Rodriguez and
Pulido.

Jeff P. Mitchell, Assistant United States Attorney, Domestic
Security and Immigration Crimes Section; Erik M. Silber,
8102            UNITED STATES v. CRUZ-GRAMAJO
Assistant United States Attorney, Criminal Appeals Section,
Los Angeles, California, for the plaintiff-appellee.


                           OPINION

HALL, Circuit Judge:

   These consolidated cases concern the Sentencing Guide-
lines applicable to illegal reentry into the United States in vio-
lation of 8 U.S.C. § 1326. The facts in each case are similar.
Defendants are foreign citizens who were deported and then
returned to this country without permission. After their illegal
reentries — but before immigration authorities discovered
them — Defendants committed and were convicted for vari-
ous state law offenses, including burglary, driving under the
influence, and evading police. At sentencing for their § 1326
offenses, the district courts held that Defendants’ intervening
state law crimes constituted “criminal history” for purposes of
calculating their Guidelines ranges.

   Defendants attack these holdings. They note that the Guide-
lines exclude from “criminal history” acts that are defined as
“relevant conduct” to the conviction offense. Relevant con-
duct, they argue, includes conduct occurring “during” the con-
viction offense. Illegal reentry is a continuing offense that
lasts from reentry until the violator is found by immigration
authorities. Therefore, Defendants argue, the state law crimes
they committed after returning to this country were still “dur-
ing” their § 1326 offenses and thus do not constitute “criminal
history.” Defendants’ argument ignores the context, structure
and purpose of the Guidelines. We affirm the district courts’
decisions to include Defendants’ intervening state law crimes
in the criminal history calculation.

  Defendants Gustavo Cruz-Gramajo (“Cruz-Gramajo”) and
Ray Aguilar-Rodriguez (“Aguilar-Rodriguez”) raise an addi-
                       UNITED STATES v. CRUZ-GRAMAJO                     8103
tional issue. In addition to calculating criminal history points
for the intervening crimes themselves, the district courts gave
them points for violating § 1326 while under a criminal jus-
tice sentence. Cruz-Gramajo and Aguilar-Rodriguez argue
these rulings were erroneous, because the sentences at issue
were for crimes they committed after illegally returning. We
affirm the district court’s ruling as to Aguilar-Rodriguez, and
need not decide the issue raised by Cruz-Gramajo, as any
potential error is harmless.

                             I.   Background

A.      Cruz-Gramajo

   Cruz-Gramajo is a citizen of Mexico. In January 2000, he
was convicted of possessing marijuana with intent to sell, in
violation of Cal. Health & Safety Code § 11359. After serving
prison time for the drug offense, Cruz-Gramajo was deported
in April 2003 and then again in September 2004. Cruz-
Gramajo returned yet again, apparently at some point in 2006.
In March 2006, he committed grand theft and burglary, in vio-
lation of Cal. Penal Code §§ 487 and 459, respectively. For
each offense, Cruz-Gramajo was sentenced to approximately
one year in jail and three years probation. On February 23,
2007, while still incarcerated in Los Angeles County Jail,
Cruz-Gramajo came to the attention of immigration officials.
He was then charged with being an alien found in the United
States after having been deported, in violation of § 1326.1 The
  1
     The statute provides in relevant part:
      (a) In general
      Subject to subsection (b) of this section, any alien who—
      (1) has been denied admission, excluded, deported, or removed
      or has departed the United States while an order of exclusion,
      deportation, or removal is outstanding, and thereafter
      (2) enters, attempts to enter, or is at any time found in, the United
      States, unless (A) prior to his reembarkation at a place outside the
8104              UNITED STATES v. CRUZ-GRAMAJO
district court found Cruz-Gramajo guilty after a one-day
bench trial.

   At sentencing, and over Cruz-Gramajo’s objection, the dis-
trict court held that the grand theft and burglary convictions
constituted “criminal history,” each resulting in two criminal
history points pursuant to U.S.S.G. §§ 4A1.1(b) and
4A1.2(e)(2). Also over Cruz-Gramajo’s objection, the district
court added two criminal history points under U.S.S.G.
§ 4A1.1(d) for committing the illegal reentry while under a
criminal justice sentence. Together with the three criminal
history points for the drug possession charge, the court found
that Cruz-Gramajo had a total of nine criminal history points,
which resulted in a criminal history category of IV. The court
also calculated a total offense level of twenty-one (resulting
from a base offense level of eight, a sixteen-level enhance-
ment because the marijuana conviction was a drug trafficking
offense, and a three-point reduction for acceptance of respon-
sibility). This resulted in a Guidelines range of fifty-seven to
seventy-one months. The court imposed a fifty-seven-month
sentence.




    United States or his application for admission from foreign con-
    tiguous territory, the Attorney General has expressly consented to
    such alien’s reapplying for admission; or (B) with respect to an
    alien previously denied admission and removed, unless such alien
    shall establish that he was not required to obtain such advance
    consent under this chapter or any prior Act,
    shall be fined under Title 18, or imprisoned not more than 2
    years, or both.
8 U.S.C. § 1326(a). Subsection (b) extends the maximum period of impris-
onment if the defendant was deported after previously having been con-
victed of various crimes. Defendants do not dispute that the offenses they
committed before they were deported fall under § 1326(b).
                   UNITED STATES v. CRUZ-GRAMAJO                         8105
B.    Aguilar-Rodriguez

   Aguilar-Rodriguez also appeals his sentence for violating
§ 1326. A citizen of Mexico, Aguilar-Rodriguez was con-
victed on September 15, 1997, for possession of a controlled
substance for sale in violation of Cal. Health & Safety Code
§ 11351(a). Aguilar-Rodriguez was deported from the United
States in October 1998, and reentered on or about May 1,
2005. After he returned, Aguilar-Rodriguez was twice con-
victed for driving under the influence in violation of Cal.
Vehicle Code § 23152(b), once in 2005 and again in 2007.2
Apparently due to the second DUI, Aguilar-Rodriguez was
found in Los Angeles by immigration officials on or about
July 10, 2007.

   Aguilar-Rodriguez’s § 1326 case received “fast track”
treatment, and his binding plea agreement was entered pursu-
ant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Proce-
dure.3 The parties agreed to a sentence at the low end of the
Guideline range, determined by an offense level of seventeen
and the criminal history the district court calculated.
  2
     Aguilar-Rodriguez’s probation from the first DUI was revoked in
October 2005, and a bench warrant was issued which remained outstand-
ing at the time of Aguilar-Rodriguez’s sentencing for his § 1326 convic-
tion.
   3
     Under this rule, the parties to a plea agreement may “agree that a spe-
cific sentence or sentencing range is the appropriate disposition of the
case, or that a particular provision of the Sentencing Guidelines, or policy
statement, or sentencing factor does or does not apply . . . .” Fed. R. Crim.
P. 11(c)(1)(C). “[S]uch a recommendation or request binds the court once
the court accepts the plea agreement . . . .” Id. “Fast track” treatment refers
to the government stipulating to an offense level that includes a three-level
reduction for acceptance of responsibility under U.S.S.G. § 3E1.1, and a
four-level reduction for participation in the “early disposition program”
under § 5K3.1. In exchange, the defendant waives indictment and agrees
that the appropriate sentence is the low-end of the applicable Guideline
range, effectively waiving any argument that his sentence should be lower
under the 18 U.S.C. § 3553(a) factors.
8106            UNITED STATES v. CRUZ-GRAMAJO
   Over Aguilar-Rodriguez’s objection, the district court
treated the DUIs as criminal history, each worth two criminal
history points. Additionally, in a ruling that Aguilar-
Rodriguez did not dispute below, the court added two crimi-
nal history points under U.S.S.G. § 4A1.1(d) on the ground
that Aguilar-Rodriguez committed § 1326 offense while on
probation for the DUI convictions. Together with five points
that are not in dispute, the district court ruled that Aguilar-
Rodriguez had eleven criminal history points, resulting in a
criminal history category of V. This resulted in a Guideline
range of forty-six to fifty-seven months. The district court
sentenced Aguilar-Rodriguez to forty-six months in prison.

C.     Pulido

   Ernesto Pulido also appeals his § 1326 sentence. In Febru-
ary 2001, Pulido was convicted of cultivating marijuana in
violation of Cal. Health & Safety Code § 11358. He was
deported from the United States on or about March 2, 2006,
and returned shortly thereafter. About three weeks later, on
March 21, 2006, Pulido violated Cal. Vehicle Code § 2800.2
by evading a police officer during a traffic stop. Immigration
officials became aware of Pulido that same day.

   Pulido was charged with violating § 1326. Like Aguilar-
Rodriguez, his case received “fast track” treatment, and he
entered a binding plea agreement under Rule 11(c)(1)(C) of
the Federal Rules of Criminal Procedure. The agreement stip-
ulated that Pulido’s total offense level was seventeen and pro-
vided that the appropriate sentence would be the low end of
the Guidelines range in light of the criminal history calculated
by the district court.

   Over Pulido’s objection, the district court treated the 2006
conviction for evading police as criminal history, which
resulted in a criminal history category of VI and a Guideline
range of fifty-one to sixty-one months. The court sentenced
Pulido to fifty-one months in prison.
                UNITED STATES v. CRUZ-GRAMAJO                8107
                 II.    Standard of Review

   We review de novo the district court’s application of the
Guidelines, including whether a prior conviction may be used
for sentencing purposes. See United States v. Rodriguez-
Rodriguez, 393 F.3d 849, 856 (9th Cir. 2005). We review “the
district court’s interpretation of the Sentencing Guidelines de
novo, the district court’s application of the Sentencing Guide-
lines to the facts of this case for abuse of discretion, and the
district court’s factual findings for clear error.” United States
v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005). “Remand
is not necessary if ‘the reviewing court concludes, on the
record as a whole, that the error was harmless, i.e., that the
error did not affect the district court’s selection of the sen-
tence imposed.’ ” United States v. Rutledge, 28 F.3d 998,
1003 (9th Cir. 1994) (quoting Williams v. United States, 503
U.S. 193, 203 (1992)).

                       III.   Discussion

A.   Criminal History Calculation

   When interpreting the Sentencing Guidelines, we apply
“ ‘the rules of statutory construction.’ ” United States v.
Valenzuela, 495 F.3d 1127, 1133 (9th Cir. 2007) (quoting
United States v. Robinson, 94 F.3d 1325, 1328 (9th Cir.
1996)). Under these rules, “[t]he plain meaning of unambigu-
ous language in a guideline provision controls.” Id. While the
“starting point is always the language of the statute itself,”
Jeffries v. Wood, 114 F.3d 1484, 1495 (9th Cir. 1997),
“[r]ather than focusing just on the word or phrase at issue, this
court looks to the entire statute to determine . . . intent.” San-
chez v. Pacific Powder Co., 147 F.3d 1097, 1099 (9th Cir.
1998) (citing Duffield v. Robertson Stephens Co., 144 F.3d
1182, 1192-93 (9th Cir. 1998) (“When examining the lan-
guage of the governing statute, we must not be guided by a
single sentence . . . , but look to the provisions of the whole
law, and to its object and policy.”) (citations omitted)). “Thus,
8108            UNITED STATES v. CRUZ-GRAMAJO
the structure and purpose of a statute may also provide guid-
ance in determining the plain meaning of its provisions.” The
Wilderness Society v. United States Fish & Wildlife Srv., 353
F.3d 1051, 1060-1061 (9th Cir. 2003) (en banc) (citing United
States v. Lewis, 67 F.3d 225, 228-29 (9th Cir. 1995)
(“Particular phrases must be construed in light of the overall
purpose and structure of the whole statutory scheme.”)).
Using these principles to evaluate the purpose, structure, and
interactions of Guidelines §§ 4A1.2, 1B1.3 and 2L1.2, in light
of the overarching goals in sentencing, we hold that § 4A1.2
does not preclude the district court from assigning criminal
history points for sentences received after an illegal entry, but
before an alien is found by immigration authorities.

   [1] The Guidelines determine sentencing ranges by com-
puting an “offense level” and a “criminal history” category.
Defendants receive criminal history points for certain “prior
sentences.” See U.S.S.G. §§ 4A1.1, 4A1.2. “The term ‘prior
sentence’ means any sentence previously imposed upon adju-
dication of guilt . . . for conduct not part of the instant
offense.” U.S.S.G. § 4A1.2(a)(1) (emphasis added). Under
this definition, conduct that was “part of the instant offense”
cannot receive criminal history points. See id. The commen-
tary associated with section 4A1.2 further elaborates on what
is meant by the term prior sentence.

    “Prior sentence” means a sentence imposed prior to
    sentencing on the instant offense, other than a sen-
    tence for conduct that is part of the instant offense.
    A sentence imposed after the defendant’s com-
    mencement of the instant offense, but prior to sen-
    tencing on the instant offense, is a prior sentence if
    it was for conduct other than conduct that was part
    of the instant offense. Conduct that is part of the
    instant offense means conduct that is relevant con-
    duct to the instant offense under the provisions of
    § 1B1.3 (Relevant Conduct).
                    UNITED STATES v. CRUZ-GRAMAJO                      8109
U.S.S.G. § 4A1.2, cmt. n.1.4 (emphasis added) (internal cita-
tions omitted).

   Defendants argue that because a violation of § 1326 is con-
sidered a continuing offense that extends from the moment of
illegal reentry until discovery by immigration officials, see,
e.g., United States v. Reyes-Pacheco, 248 F.3d 942, 946 (9th
Cir. 2001), their state law offenses should be considered rele-
vant conduct to their unlawful reentry. Defendants rely on the
description of relevant conduct in § 1B1.3 which includes “all
acts and omissions committed . . . by the defendant . . . that
occurred during the commission of the offense of conviction,
in preparation for that offense, or in the course of attempting
to avoid detection or responsibility for that offense . . . .”
(emphasis added).5 Thus, they argue that their intervening
  4
     “[C]ommentary in the Guidelines Manual that interprets or explains a
guideline is authoritative unless it violates the Constitution or a federal
statute, or is inconsistent with, or a plainly erroneous reading of, that
guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993). The govern-
ment concedes that the commentary here is authoritative.
   5
     U.S.S.G. § 1B1.3(a) provides in its entirety:
      Chapters Two (Offense Conduct) and Three (Adjustments).
      Unless otherwise specified, (i) the base offense level where the
      guideline specifies more than one base offense level, (ii) specific
      offense characteristics and (iii) cross references in Chapter Two,
      and (iv) adjustments in Chapter Three, shall be determined on the
      basis of the following:
          (1) (A) all acts and omissions committed, aided, abetted,
          counseled, commanded, induced, procured, or willfully
          caused by the defendant; and
          (B) in the case of a jointly undertaken criminal activity (a
          criminal plan, scheme, endeavor, or enterprise undertaken by
          the defendant in concert with others, whether or not charged
          as a conspiracy), all reasonably foreseeable acts and omis-
          sions of others in furtherance of the jointly undertaken crimi-
          nal activity,
          that occurred during the commission of the offense of con-
          viction, in preparation for that offense, or in the course of
8110               UNITED STATES v. CRUZ-GRAMAJO
state offenses occurred “during” their § 1326 offenses as a
temporal matter,6 and that this temporal relationship is suffi-
cient to deem the state offenses “relevant conduct,” thereby
precluding the district court from considering the convictions
as part of their criminal history calculation.

   The government contests the Defendants’ interpretation of
the word “during.” The government does not dispute that ille-
gal reentry is a continuing offense, or that the state offenses
at issue occurred during the illegal reentries as a temporal
matter. Instead, the government contends that a temporal rela-
tionship is not enough. The government reads the “during”
provision as only encompassing conduct that was both “dur-
ing” and “in connection with” the conviction offense. In other
words, the government contends that to constitute “relevant
conduct” under § 1B1.3’s “during” provision, other offenses
must also be logically related to the offense for which a sen-
tence is being imposed, and that such a logical relationship is
absent here.

         attempting to avoid detection or responsibility for that
         offense;
         (2) solely with respect to offenses of a character for which
         § 3D1.2(d) would require grouping of multiple counts, all
         acts and omissions described in subdivisions (1)(A) and
         (1)(B) above that were part of the same course of conduct or
         common scheme or plan as the offense of conviction;
         (3) all harm that resulted from the acts and omissions speci-
         fied in subsections (a)(1) and (a)(2) above, and all harm that
         was the object of such acts and omissions; and
          (4) any other information specified in the applicable guide-
          line.
   6
     Defendants rely on the recent decision United States v. Ressam, where
the Supreme Court held that the word “during” in 18 U.S.C. § 844(h),
which punishes any individual who “carries an explosive during the com-
mission of any felony,” implies only a temporal relationship. See 128 S.Ct.
1858, 1860-61 (2008) (emphasis added). We separately note that the word
“carries” limits even this statute’s reach beyond merely the temporal
requirement provided by the word “during.”
                   UNITED STATES v. CRUZ-GRAMAJO                      8111
   Both Defendants and the government cite precedent inter-
preting the phrase “during the commission of the offense of
conviction” in § 1B1.3 to support their respective positions.
The Defendants rely upon United States v. Johnson, 187 F.3d
1129 (9th Cir. 1999), and United States v. Stoterau, 524 F.3d
988 (9th Cir. 2008) as implicitly holding that a temporal rela-
tionship was sufficient to include acts committed by defen-
dants under relevant conduct. Both cases, however, reviewed
the application of an enhancement for acts committed by the
defendant “during the commission of the offense of convic-
tion” that were also related logically to the offense. The cases
did not decide what conduct the district court was precluded
from considering as part of criminal history, but rather what
conduct the district court was permitted to include in its con-
sideration of relevant conduct. The government’s reliance on
precedent from other circuits, though helpful in illustrating
what results may follow from interpreting “during” to require
only a temporal nexus to the offense,7 also do not address the
precise issue in this case.

   The government correctly notes that the context of the
phrase and the structure and purpose of the Guidelines are rel-
evant in determining the plain meaning of terms within a par-
ticular Guideline, rather than simply the definition of the
language used. But both parties’ reliance upon the meaning of
  7
    See, e.g., United States v. Ritsema, 31 F.3d 559, 567 (7th Cir. 1994)
(noting the “absurd results” resulting if “[t]he temporal dimension of rele-
vant conduct” could “cause a court to convert a single possession convic-
tion into a sweeping tool to gather in all of the otherwise unrelated
criminality of a defendant which occurred contemporaneously with the
charge[d] offense”); United States v. Kim, 896 F.3d 678, 684 n.4 (2d Cir.
1990) (noting temporal-only requirement would convert “a barroom brawl
occurring ‘during’ a three-month period in which a mail fraud offense was
committed” to relevant conduct). These cases, rather than determining
what constituted relevant conduct that a district court must exclude from
criminal history, contemplated what conduct the government should not be
permitted to consider relevant to a particular continuing offense, in order
to increase the offense level calculated from the charged offense.
8112            UNITED STATES v. CRUZ-GRAMAJO
the phrase “during the commission of the offense,” is mis-
placed. We need not decide the general scope of relevant con-
duct a court is permitted to evaluate as a broad proposition.
What we instead decide today is the more narrow issue of
whether § 4A1.2 precludes a district court from assigning any
criminal history points for a sentence imposed prior to a
defendant being “found” by immigration authorities, by defin-
ing that conduct as “part of the instant offense.”

    1.   § 4A1.2

   We begin our analysis by examining § 4A1.2(a)(1), and
application note 1, with the principles of statutory construc-
tion in mind. We note first that the purpose of § 4A1.2 is “ ‘to
reflect the seriousness of a defendant’s criminal history,’
while, at the same time, avoiding ‘overstat[ing] the serious-
ness of the defendant’s criminal conduct.’ ” United States v.
Marler, 527 F.3d 874, 879 (9th Cir. 2008) (quoting United
States v. Asberry, 394 F.3d 712, 719 (9th Cir. 2005)). The “ul-
timate goal remains finding a sentence that accurately reflects
both the seriousness of the underlying federal offense and the
extent and nature of the defendant’s criminal past.” Asberry,
394 F.3d at 719.

   [2] Section 4A1.2 uses two means of ensuring that a defen-
dant’s criminal history is not overstated. The first, at issue in
this case, is the limitation that a “prior sentence” should incor-
porate only conduct “not part of the instant offense.” The
application note, however, expressly contemplates a situation
in which a defendant’s instant offense may be contemporane-
ous with conduct forming the basis of another sentence, and
yet not be considered relevant conduct: “[a] sentence imposed
after the defendant’s commencement of the instant offense,
but prior to sentencing on the instant offense, is a prior sen-
tence if it was for conduct other than conduct that was part of
the instant offense.” § 4A1.2, cmt. n. 1 (emphasis added). The
Sentencing Commission did not limit the definition of prior
sentences to extend only to conduct committed entirely before
                  UNITED STATES v. CRUZ-GRAMAJO                    8113
or after the conduct constituting the instant offense. Contrary
to Defendant’s interpretation, the use of the word “com-
mencement” indicates that another offense can be committed
and counted as a prior sentence, though committed “during
the commission of the offense of conviction.” As written, this
sentence of the application note provides that Defendants’
state law convictions may not be part of the instant offense,
even if the sentences were imposed after Defendants com-
menced their § 1326 violations by illegally reentering the
country. The application note goes on to explain that to be
excluded as a prior sentence, the conduct must be relevant
conduct: 1) to the instant offense, 2) under the provisions of
§ 1B1.3 (Relevant Conduct). Id. Therefore, deciding whether
Defendants’ state law convictions constitute relevant conduct
requires applying all of the provisions of § 1B1.3 in light of
the instant offense, a violation of § 1326, a task we undertake
in the next section.

   [3] The second means of preventing overstating, or double-
counting of a defendant’s criminal history is the limitation in
§ 4A1.2(a)(2), requiring: “[p]rior sentences imposed in related
cases . . . to be treated as one sentence . . . .” Application note
3 clarifies that if the two prior sentences are not separated by
an intervening arrest, they “are considered related if they
resulted from sentences that (A) occurred on the same occasion,8
(B) were part of a single common scheme or plan, or (C) were
consolidated for trial or sentencing.” Thus, § 4A1.2 limits the
number of points that can be assigned in criminal history by
first ensuring that the prior sentence has not actually been cal-
culated as “part of the instant offense,” and secondly, by
ensuring that prior cases, related to each other, do not count
twice.
  8
   In United States v. Marler, 527 F.3d 874, 877-881 (9th Cir. 2008), we
held that the defendant’s reliance on the “occurred on the same occasion”
prong was insufficient to make two prior sentences related for the pur-
poses of counting criminal history merely because one of the offenses was
a continuing offense, escape, and therefore technically occurred contem-
poraneously with the other conviction for robbery.
8114            UNITED STATES v. CRUZ-GRAMAJO
    2.    § 1B1.3

    [4] The purpose of § 1B1.3 of the Guidelines, Relevant
Conduct, is to “capture the real offense behavior” involved in
defendant’s conduct. United States v. Romero, 293 F. 3d
1120, 1124 (9th Cir. 2002). The Sentencing Commission
accomplished this task by formulating a relevant conduct
guideline which “identified the categories of misconduct that
the sentencing judge could examine in determining whether to
make . . . adjustments to the base offense level,” specific
offense characteristics, cross references, and adjustments and
enhancements. United States v. Kim, 896 F.2d 678, 682 (2d
Cir. 1990) (emphasis added); see also § 1B1.3(a). The provi-
sions of § 1B1.3 are written broadly to provide sentencing
judges maximum discretion, allowing flexibility in their appli-
cation to a variety of crimes and circumstances. It is the provi-
sions’ interactions with numerous other guidelines, however,
that determine what conduct is “relevant” to each specific
guideline, as indicated by the title “Relevant Conduct.” See
Singh v. Gonzalez, 499 F.3d 969, 977 (9th Cir. 2007) (noting
title “may be instructive in putting the statute in context”) (cit-
ing Almendarez-Torres v. United States, 523 U.S. 224, 234
(1998)).

   Applying the relevant conduct guideline can facilitate a dis-
trict court’s consideration of germane uncharged conduct
occurring before, during, or after the charge-offense. United
States v. Ritsema, 31 F.3d 559, 567 (7th Cir. 1994). Con-
versely, the relevant conduct guideline can also limit the sen-
tencing judge’s discretion to consider conduct independently
where it “involve[s] a pattern of misconduct that cannot read-
ily be broken into discrete, identifiable units that are meaning-
ful for purposes of sentencing.” § 1B1.3 (background). Thus,
§ 1B1.3(a)(2) of the relevant conduct guideline, in conjunc-
tion with U.S.S.G. § 3D1.2(d), provides that when conduct
involves the same course of conduct or common scheme or
plan, and the offense behavior and applicable guideline con-
template the total amount of harm or loss, or the involvement
                   UNITED STATES v. CRUZ-GRAMAJO                      8115
of continuous behavior, the conduct is considered “relevant
conduct” for guidelines calculation purposes.9 “The reference
to § 3D1.2(d), which provides for grouping of multiple counts
arising out of a continuing offense, when the offense guide-
line takes the continuing nature into account, also prevents
double counting.” § 1B1.3 (background). But § 3D1.2 does
not include the offense guideline applicable to illegal reentry
violations, U.S.S.G. § 2L1.2, within its coverage, as the
offense of being “found” does not contemplate continuous
related harm or loss.

   [5] An application note applicable to § 1B1.3(a)(2) explic-
itly cross-references § 4A1.2(a)(1), providing an example and
explanation of the Sentencing Commission’s intent regarding
the interaction of the relevant conduct and prior sentence pro-
visions. In application note 8, the example is given of a defen-
dant engaging in two drug sales as part of the same course of
conduct, facing conviction for one sale in state court and the
second in federal court. In these circumstances, § 1B1.3
makes clear that the state law conviction constitutes relevant
conduct, and not a prior sentence under § 4A1.2(a)(1).
§ 1B1.3, cmt. n. 8. In this case, Defendants do not argue that
their state law convictions were pursuant to the same course
of conduct as their illegal reentry, or that § 1B1.3(a)(2) is
even applicable. Instead, they rely solely on the temporal link
between the two offenses, caused by the continuous nature of
an illegal reentry offense.
   9
     Section 1B1.3(a)(3) continues this pattern of limiting conduct consid-
ered under relevant conduct by notions of proximate causation. Just as
§ 1B1.3(a)(2) limits its application to conduct “part of the same course of
conduct or common scheme,” the harm considered relevant for purposes
of § 1B1.3(a)(3) is limited to harm that was a “ ‘direct result’ or ‘flowed
naturally’ from the defendant’s criminal misconduct.” See United States
v. Stoterau, 524 F.3d 988, 998 (9th Cir. 2008) (quoting United States v.
Hicks, 217 F.3d 1038, 1048 (9th Cir. 2000)). Defendants’ interpretation of
relevant conduct as including any conduct even temporally connected to
an offense, by contrast, would inject a “but for” theory of actual causation
into the definition of relevant conduct.
8116            UNITED STATES v. CRUZ-GRAMAJO
   [6] Defendants’ reliance on a mere temporal link to require
the district court to consider the state law sentences relevant
conduct, and therefore not prior criminal history, is insuffi-
cient. Section 1B1.3 does not create a scope of relevant con-
duct that has independent significance. Rather it merely
defines the scope of conduct considered in determining the
base offense level, specific offense characteristics, cross refer-
ences, and adjustments involved. See § 1B1.3 (background)
(“Subsection (a) establishes a rule of construction by specify-
ing, in the absence of more explicit instructions in the context
of a specific guideline, the range of conduct that is relevant
to determining the applicable offense level.”) (emphasis
added); see also U.S.S.G. § 1B1.2, cmt. n. 2 (“Section
1B1.2(b) directs the court, once it has determined the applica-
ble guideline . . . to determine any applicable specific offense
characteristics (under that guideline), and any other applica-
ble sentencing factors pursuant to the relevant conduct defini-
tion in § 1B1.3.”) (emphasis added). Thus, because
Defendants’ state law offenses do not fall within the scope of
§ 1B1.3(a)(2), they fall within relevant conduct for purposes
of § 4A1.2 only if they were incorporated in the guidelines
calculation of the base offense level under § 2L1.2, specific
offense characteristics, cross references, or adjustments to the
instant offense of illegal reentry. An evaluation of § 2L1.2
shows that Defendants’ convictions after unlawfully reenter-
ing the country are not incorporated in the offense level calcu-
lation.

    3.    § 2L1.2

   [7] Unlike continuous offenses included in § 3D1.2(d)
(Groups of Closely Related Counts), the total amount of harm
involved in illegal reentry does not vary based on the continu-
ous nature of the offense. In United States v. Carrasco, 313
F.3d 750, 755-756 (2d. Cir. 2002), the Second Circuit con-
cisely stated the harm involved in an illegal reentry offense.
Regardless of the motive: “the ‘harm’ remains the illegal
reentry.” Id. The harm contemplated by the statute, then, is
                   UNITED STATES v. CRUZ-GRAMAJO                      8117
completed at the time the defendant completes the actus reus
of the offense, the voluntary illegal reentry without permis-
sion. See United States v. Ayala, 35 F.3d 423, 426 (9th Cir.
1994). Section 2L1.2 provides only one base offense level for
unlawful entering or remaining in the United States. Under
the Specific Offense Characteristics, however, the offense
level is increased if the defendant reentered the country fol-
lowing deportation for certain crimes. The increase in punish-
ment is not dependent on the purpose for the reentry, but “to
reflect the greater culpability of an alien who illegally reenters
after committing” previous crimes in this country. Carrasco,
313 F.3d at 756. For purposes of calculating the offense level,
it is irrelevant what conduct the alien engages in after reentry,
as the harm is already complete.10 See United States v. Rivera-
Ventura, 72 F.3d 277, 281 (2d Cir. 1995) (noting that a
§ 1326 violation is “ordinarily complete as soon as the entry
or attempt is made”); cf. United States v. Marler, 527 F.3d
874, 879 (9th Cir. 2008) (holding that “for criminal history
calculation purposes, the escape was complete, even though
[the defendant] continued to be on escape status”). Defen-
dants’ state law offenses, therefore, were not included in the
calculation of the base offense level or specific offense char-
acteristics. Because Defendants’ state law offenses were not
incorporated into the offense level calculation, and were not
required to be considered relevant conduct under
§ 1B1.3(a)(2), the state law offenses were not “relevant con-
duct to the instant offense under the provisions of § 1B1.3.”
See § 4A1.2, cmt. n.1.
  10
     A violation of § 1326, and its applicable guideline § 2L1.2, differs in
its limited consideration of a defendant’s other conduct and harm caused.
For example, the guideline applicable to a violation of 18 U.S.C. § 844(h),
for carrying an explosive device during the commission of a felony (at
issue in United States v. Ressam, 128 S. Ct. 1858 (2008)), supercedes even
the normal enhancements otherwise applicable, noting that the mere tem-
poral requirement under the statute provides sufficient relatedness to the
offense conduct. § 2K2.4(a) & cmt. n.4; see also § 2A4.1(b)(7) (increasing
offense level if victim was kidnapped “during the commission of, or in
connection with, another offense or escape”).
8118               UNITED STATES v. CRUZ-GRAMAJO
   [8] Our determination is consistent with the structure and
interactions of the Guidelines, as well as the policy goal of
avoiding overstating a defendant’s criminal history. There is
no overstatement involved in including Defendants’ prior sen-
tences in criminal history, as they were not included in the
calculation of the offense level, based on properly applied
guidelines. The application note contemplated the possibility
that an offense could occur contemporaneously with the
instant federal offense without necessarily falling under rele-
vant conduct. Moreover, including Defendants’ state convic-
tions in the criminal history calculation preserves “the second
fundamental element of the Guidelines calculus . . . based on
an offender characteristic, namely criminal history.” United
States v. Allen, 488 F.3d 1244, 1256 (10th Cir. 2007) (noting
that “prior acts that are not related to the offense of conviction
may be considered because a ‘defendant’s prior record of past
criminal conduct is directly relevant to’ the purposes of sen-
tencing set forth in 18 U.S.C. § 3553(a)(2)” (quoting U.S.S.G.
§ 4A intro cmt.)).11 We affirm the district courts’ assignment
of criminal history points to Defendants’ state law convic-
tions.
  11
     The importance of this secondary purpose is even more prevalent for
violations of § 1326. Guideline § 2L1.2, application note 6, makes clear
that prior convictions used in calculating a defendant’s specific offense
characteristic level are not excluded from consideration under criminal
history. Defendants’ interpretation of § 4A1.2, application note 1, by con-
trast, would specifically include these convictions as part of relevant con-
duct, excluding them from any prior sentence calculation. This is because
under § 1B1.3(a)(4), “any other information specified in the applicable
guideline,” is included within relevant conduct used in determining spe-
cific offense characteristics. Section 2L1.2, in turn, includes certain prior
convictions in its specific offense characteristics calculation, rendering it
relevant conduct under § 1B1.3. Certainly the application note did not
mean to include sentences received years earlier as “part of the instant
offense.” See Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 63
(“There is no canon against using common sense in construing laws as
saying what they obviously mean.”).
                UNITED STATES v. CRUZ-GRAMAJO               8119
   Our decision is also consistent with the Fifth Circuit’s
approach in United States v. Vargas-Garcia, 434 F.3d 345
(5th Cir. 2005). Vargas-Garcia interpreted the same applica-
tion note at issue here and held, under plain error review, that
the continuing nature of a § 1326 violation did not preclude
the district court from including other sentences in criminal
history. Id. at 352. Vargas-Garcia focused on “the concept of
separable prior offenses . . . based on ‘different criminal con-
duct that harmed different societal interests.’ ” Id. at 350
(quoting United States v. Beddow, 957 F.2d 1330, 1339 (6th
Cir. 1992)). The court did not want “the concealed and
extended nature of [illegal reentry to] shield multiple and sev-
erable instances of unlawful conduct from their appropriate
consequences at sentencing.” Id. at 349 (internal citations
omitted). This reasoning tracks the purpose of §§ 1B1.3(a)(2)
and 3D1.2(d), outlined above. Where there is no difficulty
identifying severable harms caused by multiple offenses, the
goal of § 4A1.2 in preventing overstating a defendant’s crimi-
nal history is not offended. For crimes committed after an
alien unlawfully reenters, but before he or she is “found,”
there is no “pattern of misconduct that cannot readily be bro-
ken into discrete, identifiable units that are meaningful for
purposes of sentencing” merely because the crimes were tech-
nically contemporaneous. § 1B1.3 (background); see also
Marler, 527 F.3d at 881 (holding that because the defendent
“[did] not point to any evidence that his possession of [a] fire-
arm occurred in conjunction with [his] robbery conspiracy,”
the district court did not err in including the sentence as part
of criminal history rather than relevant conduct).

B.   § 4A1.1(d) Assignment of Points

   The district courts also assigned Cruz-Gramajo and
Aguilar-Rodriguez points under U.S.S.G. § 4A1.1(d) for vio-
lating § 1326 while under a criminal justice sentence. Cruz-
Gramajo and Aguilar-Rodriguez argue these rulings were
erroneous because they were not under any sentences when
they stepped across the border; instead, the sentences at issue
8120            UNITED STATES v. CRUZ-GRAMAJO
were for crimes committed after they reentered. Section
4A1.1(d) directs a district court to add two criminal history
points “if the defendant committed the instant offense while
under any criminal justice sentence, including probation,
parole, supervised release, imprisonment, work release, or
escape status.” An application note equates “the instant
offense” with “any relevant conduct.” See id. cmt. n.4. There-
fore, the question is whether Cruz-Gramajo and Aguilar-
Rodriguez committed any “relevant conduct” to the § 1326
offense while under the sentences they received for commit-
ting crimes after illegally reentering.

  Cruz-Gramajo preserved the issue at the district court and
so we review the district court’s determination de novo.
United States v. Grissom, 525 F.3d 691, 696 (9th Cir. 2008).
We review only for plain error in Aguilar-Rodriguez’s case
because he did not raise the issue below. See United States v.
Olano, 507 U.S. 725, 732 (1993).

   [9] Even assuming the district court erred in assigning two
criminal history points to Cruz-Gramajo under § 4A1.1(d), we
need not reach the issue. Cruz-Gramajo had seven criminal
history points assigned based on his prior sentences; the dis-
trict court’s addition of the two § 4A1.1(d) points brought his
total criminal history points to nine. Both seven and nine
points result in a criminal history category of IV, see U.S.S.G.
Ch.5, Pt. A, resulting in the same Guideline range even
assuming error. Therefore, if any error was committed, which
we do not decide, it was harmless. See United States v. Rut-
ledge, 28 F.3d 998, 1003-1004 & n.7 (9th Cir. 1994).

   [10] We hold that the district court did not err, much less
plainly err, in its assignment of two criminal history points
under § 4A1.1(d) to Aguilar-Rodriguez. In Ayala, we noted
that “[t]o avoid being ‘found in’ the United States, a deported
alien can either not re-enter the United States, or, if he has
already re-entered the United States, he can leave.” 35 F.3d
at 425. Here, Aguilar-Rodriguez committed two separate DUI
                UNITED STATES v. CRUZ-GRAMAJO               8121
offenses before he was “found” in the United States. Aguilar-
Rodriguez’s first DUI conviction was received in August
2005, after his unlawful reentry. In October 2005, his proba-
tion was revoked and a bench warrant was issued. According
to § 4A1.1(d), cmt., n. 4, “[a] defendant who commits the
instant offense while a violation warrant from a prior sentence
is outstanding (e.g., a probation, parole, or supervised release
violation warrant) shall be deemed to be under a criminal jus-
tice sentence for the purposes of this provision . . . .” Thus,
while under a criminal justice sentence for the first DUI,
Aguilar-Rodriguez did not leave the country to avoid being
“found.” The district court did not plainly err in assigning the
§ 4A1.1(d) points to Aguilar-Rodriguez.

  AFFIRMED.



PREGERSON, Circuit Judge, dissenting in part and concur-
ring in part:

   These three cases were tried separately before three differ-
ent district courts. They were consolidated before us because
they present common facts and issues. The events in each of
the defendants’ cases occurred in the same order: the defen-
dants (1) were deported from the United States; (2) reentered
the United States illegally; (3) committed state law crimes;
and finally (4) were “found” by immigration officials.

   I would find that each of the three district courts separately
erred in assigning additional criminal history points to the
defendants for state law offenses committed after the defen-
dants illegally reentered the United States, but before each
was “found” by immigration authorities. Furthermore, I
would find that the district court erred in assigning two addi-
tional criminal history points to defendant Cruz-Gramajo for
committing an 8 U.S.C. § 1326 offense “while under
[another] criminal justice sentence.” U.S.S.G. § 4A1.1(d).
8122               UNITED STATES v. CRUZ-GRAMAJO
Accordingly, I dissent entirely from the majority opinion’s
Section III A, “Criminal History Calculation,” and also dis-
sent in part from the majority opinion’s Section III B,
“§ 4A1.1(d) Assignment of Points.”

A.     Criminal History Calculation1

   Under the Sentencing Guidelines, defendants are assigned
criminal history points for prior sentences of imprisonment,
provided those sentences satisfy certain requirements. See
U.S.S.G. § 4A1.1. The Guidelines define a prior sentence as
“any sentence previously imposed upon adjudication of guilt
. . . for conduct not part of the instant offense.” U.S.S.G.
§ 4A1.2(a)(1). Pursuant to the Guidelines then, the district
court may not assign criminal history points for any conduct
that was part of the instant offense. See id. An application
note to § 4A1.2 explains that “[c]onduct that is part of the
instant offense means conduct that is relevant conduct to the
instant offense under the provisions of § 1B1.3 (Relevant
Conduct).” U.S.S.G. § 4A1.2 cmt.1 (emphasis added). Under
U.S.S.G. § 1B1.3(a)(1), “relevant conduct” includes “all acts
and omissions committed . . . by the defendant . . . that
occurred during the commission of the offense of conviction,
in preparation for that offense, or in the course of attempting
to avoid detection or responsibility for that offense . . . . ”
(Emphasis added).

   The crime of being “found” in the United States pursuant
to § 1326 is considered an ongoing offense, because it “com-
mences with the illegal entry, but is not completed until dis-
covery” by immigration officials. United States v. Ruelas-
Arreguin, 219 F.3d 1056, 1061 (9th Cir. 2000). Here, the
defendants each committed state law offenses after their ille-
  1
    I have given the two sections of this dissent the same titles as the corre-
sponding sections of the majority opinion. But both Section A and Section
B of this dissent (and the majority opinion) concern criminal history calcu-
lations.
                   UNITED STATES v. CRUZ-GRAMAJO                      8123
gal re-entry, but before being “found” by immigration offi-
cials. Because § 1326 is an ongoing offense, the defendants’
state law offenses took place “during the commission of” the
defendants’ § 1326 violations. See U.S.S.G. § 1B1.3(a)(1).
Accordingly, I would find that the district courts should have
treated the state law offenses as “relevant conduct,” as defined
by U.S.S.G. § 1B1.3, and not as criminal history, because the
state law offenses took place “during the commission of” the
§ 1326 violations.

   The state law offenses should be considered “relevant con-
duct” in relation to the § 1326 offenses based on the plain
meaning of the word “during” in § 1B1.3(a)(1). Under the
rules of statutory construction, “the plain meaning of unam-
biguous language in a guideline provision controls.” United
States v. Valenzuela, 495 F.3d 1127, 1133 (9th Cir. 2007). I
agree with the defendants that the plain meaning of the word
“during” in the definition of “relevant conduct” in U.S.S.G.
§ 1B1.3(a)(1) indicates a temporal relationship, and nothing
more, between the offenses. The term “during” simply indi-
cates a passage of time. Though asserted by the majority, it
is infeasible that by solely employing the word “during,” Con-
gress intended that U.S.S.G. § 1B1.3(a)(1) was meant to
encompass conduct that was both “during” and “in connection
with” the offense of conviction.

   The Supreme Court’s ruling in United States v. Ressam,
128 S. Ct. 1858, 1860-62 (2008), supports the defendants’
plain meaning argument of the word “during.” Though the
Court was addressing a different statute, 18 U.S.C. § 844(h)(2),2
Ressam involved statutory language identical to the Guide-
lines text at issue in this case. See id. at 1860. The defendant
  2
    18 U.S.C. § 844(h)(2) requires that “[w]hoever carries an explosive
during the commission of any felony which may be prosecuted in a court
of the United States . . . shall, in addition to the punishment provided for
such felony, be sentenced to imprisonment for 10 years.” (emphasis
added).
8124              UNITED STATES v. CRUZ-GRAMAJO
in Ressam was convicted of making a false statement on a
customs form, a felony, and of carrying an explosive “during
the commission of” that felony in violation of 18 U.S.C.
§ 844(h)(2).3 Id. at 1860. The government presented no evi-
dence to show that carrying the explosive in any way facili-
tated the false statement. Our court concluded that the phrase
“during the commission of” required both a temporal connec-
tion and “a relational element,” and vacated the § 844(h)(2)
conviction accordingly. United States v. Ressam, 474 F.3d
597, 603 (9th Cir. 2007), rev’d, 128 S. Ct. 1858 (2008).

  The Supreme Court reversed our court’s decision, and in so
doing rejected our interpretation of the word “during.” Res-
sam, 128 S.Ct. at 1862. The Court instead held that the plain
meaning of “during” did not include an “in relation to”
requirement:

      There is no need to consult dictionary definitions of
      the word “during” in order to arrive at the conclusion
      that respondent engaged in the precise conduct
      described in § 844(h)(2). The term “during” denotes
      a temporal link; that is surely the most natural read-
      ing of the word as used in the statute. Because
      respondent’s carrying of the explosives was contem-
      poraneous with his violation of § 1001, he carried
      them “during” that violation.

Id. at 1861 (emphasis added). I believe we should follow the
Supreme Court’s analysis and similarly interpret the word
“during” in § 1B1.3(a)(1) to signify a temporal link only.

   Additionally, it seems that by employing the majority opin-
ion’s interpretation of the word “during,” luck will become an
inextricable element of our sentencing process. If a defendant
  3
   The defendant in Ressam entered the U.S. with a trunk full of explo-
sives. Ressam, 128 S. Ct. at 1860. He then falsely filled out a customs
form. Id. Later, authorities searched his car and found the explosives. Id.
                UNITED STATES v. CRUZ-GRAMAJO                8125
illegally reenters the country but is not “found” for many
years, and in the meantime commits a number of state law
offenses, then his criminal history point total under the Sen-
tencing Guidelines will increase. This defendant will serve a
much longer sentence for his § 1326 offense compared to the
sentence he would serve for the same offense if “found” by
immigration authorities the day he illegally reentered. Follow-
ing the majority opinion’s view, criminal history points will
be allocated based on the arbitrary actions of immigration
authorities rather than the actions of defendants. I believe we
should be punishing defendants for their own actions, and not
the actions of immigration officials.

   I further find that each district court’s error in interpreting
the Guidelines was not harmless. The sentence ranges of all
three defendants increased because of their enhanced criminal
history categories. For example, defendant Cruz-Gramajo
received four additional criminal history points for two state
law crimes he committed after he illegally re-entered to the
United States. The four additional points increased his total to
nine. The four additional criminal history points pushed him
from Category III to Category IV, increasing his Guidelines
range from 46-57 months to 57-71 months. The district court
ultimately sentenced Cruz-Gramajo to 57 months of incarcer-
ation. The sentence ranges of Aguilar-Rodriguez and Pulido
similarly increased. Given that the binding plea agreements of
all three defendants mandated sentences at the low end of the
appropriate Guidelines range, there is no doubt that the errors
were not harmless. Accordingly, I dissent from Part III A of
the majority opinion.

B.   § 4A1.1(d) Assignment of Points

   I concur in the majority opinion’s determination that the
district court accurately assigned defendant Aguilar-
Rodriguez two additional criminal history points under
U.S.S.G. § 4A1.1(d). Though not addressed by the majority
opinion, under the de novo standard I would hold that the dis-
8126                UNITED STATES v. CRUZ-GRAMAJO
trict court’s assignment of two additional criminal history
points to defendant Cruz-Gramajo pursuant to U.S.S.G.
§ 4A1.1(d) was misguided. Section 4A1.1(d) directs a district
court to add two criminal history points “if the defendant
committed the instant offense while under any criminal justice
sentence, including probation, parole, supervised release, [or]
imprisonment . . . . ” The district court assigned these two
additional points to Cruz-Gramajo pursuant to § 4A1.1(d)
because immigration authorities “found” him in April 2007,
when he was serving time in the Los Angeles County Jail for
grand theft and burglary.

   I believe the district court’s reading of § 4A1.1(d) leads to
absurd results in sentencing Cruz-Gramajo for his § 1326 ille-
gal reentry offense because Cruz-Gramajo was incarcerated
when he was “found” by immigration authorities.4 The major-
ity opinion quotes United States v. Ayala, 35 F.3d 423, 425
(9th Cir. 1994), that “[t]o avoid being ‘found in’ the United
States, a deported alien can either not re-enter the United
States or, if he has already re-entered the United States, he
can leave.” (Emphasis added). Cruz-Gramajo, however, was
in jail, and so could not leave the United States to avoid being
“found.”5

  By assigning two additional points to Cruz-Gramajo pursu-
ant to § 4A1.1(d) in addition to the four criminal history
points the court assigned pursuant to § 4A1.2, the district
court effectively punished Cruz-Gramajo three times for the
same grand theft and burglary offenses he committed in 2006:
   4
     I agree with the majority that the district court properly assigned crimi-
nal history points to Aguilar-Rodriguez under U.S.S.G. § 4A1.1(d) for
violating § 1326 while under a criminal justice sentence. Aguilar-
Rodriguez was not imprisoned when he was “found” by immigration
authorities, and thus could have left the United States to avoid violating
§ 1326.
   5
     We did not address this issue in United States v. Lomeli-Mences, ___
F.3d ___, No. 07-50452, 2009 WL 1476976 (9th Cir. May 28, 2009),
because it did not come to our attention in that case.
                  UNITED STATES v. CRUZ-GRAMAJO                      8127
      (1)   Cruz-Gramajo served jail sentences imposed by
            a California state court for his 2006 grand theft
            and burglary offenses.

      (2)   Because Cruz-Gramajo was “found” by immi-
            gration authorities after he was sentenced for
            grand theft and burglary, the district court
            indulged in the legal fiction that Cruz-Gramajo
            committed the illegal reentry offense after he
            committed the grand theft and burglary
            offenses. The district court thus assigned four
            additional criminal history points for the grand
            theft and burglary convictions in its calculation
            of Cruz-Gramajo’s illegal reentry sentence.6

      (3)   Finally, because Cruz-Gramajo was “found” by
            immigration authorities while serving jail time
            for grand theft and burglary, the district court
            employed a further legal fiction: that Cruz-
            Gramajo illegally reentered the United States
            while serving a jail sentence for grand theft
            and burglary. Thus, the district court further
            punished Cruz-Gramajo with two additional
            criminal history points.

I find that employing such legal fictions is illogical and unfair
in Cruz-Gramajo’s case. Accordingly, I disagree with the dis-
trict court’s assessment of two additional criminal history
points for “committ[ing] the [illegal reentry] offense while
under [another] criminal justice sentence.”7 U.S.S.G.
§ 4A1.1(d).
  6
   This issue is discussed in detail in Section A of this dissent.
  7
   I also disagree with the four criminal history points the district court
assigned to Cruz-Gramajo pursuant to U.S.S.G. § 4A1.1, as I explained in
Section A of this dissent.
8128           UNITED STATES v. CRUZ-GRAMAJO
   The majority contends that because the two points sub-
tracted from Cruz-Gramajo’s criminal history point total
would not change his criminal history category (it would
remain at IV), any error the district court may have made in
assigning points to Cruz-Gramajo pursuant to U.S.S.G.
§ 4A1.1(d) would be harmless. But I disagree. As I explained
in Section A of this dissent, Cruz-Gramajo should not have
been assigned four criminal history points for the state law
offenses he committed after he re-entered the United States
but before he was “found.” His criminal history total of nine
points should have been reduced by four points, to a total of
five points, thereby reducing his criminal history category
from Category IV to Category III. Then, if an additional two
points were subtracted because the district court erred in
assigning Cruz-Gramajo two additional criminal history
points under U.S.S.G. § 4A1.1(d), Cruz-Gramajo’s criminal
history category would be further reduced to Category II, and
his sentencing range reduced to 41-51 months. Instead, the
district court calculated a sentencing range of 57-71 months.
Cruz-Gramajo’s substantive rights are affected here, when
both issues on appeal are viewed together. Accordingly, I dis-
sent from the majority’s treatment of defendant Cruz-Gramajo
on this issue, but concur in its holding regarding defendant
Aguilar-Rodriguez.
