                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-5222


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ARTURO HERNANDEZ-FRIAS, a/k/a Sergio Armando Andrade-Lopez,
a/k/a Arturo Fries Hernandez,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Robert E. Payne, Senior
District Judge. (3:09-cr-00211-REP-1)


Argued:   March 20, 2012                   Decided:    April 12, 2012


Before MOTZ and    SHEDD,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion


ARGUED: Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant.    Richard Daniel
Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee.    ON BRIEF: Samuel P. Simpson, V, MONTGOMERY &
SIMPSON, LLLP, Richmond, Virginia, for Appellant.        Neil H.
MacBride, United States Attorney, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Arturo Hernandez-Frias pleaded guilty to being “found in”

the United States after previously being deported subsequent to

a conviction for an aggravated felony, in violation of 8 U.S.C.

§ 1326(a).        Hernandez-Frias appeals his sentence, challenging

both the calculation of his criminal history points under the

U.S. Sentencing Guidelines and the district court’s failure to

provide an individualized explanation for his sentence.                  For the

reasons that follow, we affirm.



                                          I.

     Hernandez-Frias, a native of Mexico, legally entered the

United States on a work permit when he was a teenager.                   In 1990,

however, he was convicted in California of a felony offense for

drug distribution, resulting in the cancellation of his work

permit.     In 1993, Hernandez-Frias was convicted of another drug-

related felony offense.

     In 2000 and again in 2004, U.S. immigration authorities

arrested Hernandez-Frias and deported him from the United States

to   Mexico.          Each    time,    following     his   return   to    Mexico,

Hernandez-Frias illegally reentered the United States.                   On July

23, 2005, Hernandez-Frias was arrested in Virginia for driving

under     the    influence         (“DUI”);    a   state   court    subsequently

convicted       him   of     the    offense.       He   incurred    another   DUI

                                          2
conviction in Virginia in 2009.                    While he was in jail for his

second    DUI    conviction,        on   June       30,      2009,    U.S.    immigration

authorities     discovered      that     he       was   in     the   United    States    and

charged him with the instant offense.

     Hernandez-Frias pleaded guilty to one count of being “found

in” the United States after previously being deported subsequent

to   a   conviction     for    an     aggravated          felony      in     violation    of

8 U.S.C. § 1326(a).           In preparing Hernandez-Frias’s presentence

report (“PSR”), the probation officer determined that Hernandez-

Frias’s offense commenced on July 23, 2005 -- the date on which

Hernandez-Frias was arrested for his first DUI in Virginia. 1                            The

probation officer then used this date to calculate Hernandez-

Frias’s criminal history score pursuant to the U.S. Sentencing

Guidelines (“U.S.S.G.”).

     Based on the July 23, 2005 commencement date, the probation

officer added criminal history points for Hernandez-Frias’s drug

conviction      in   1990.      See      U.S.S.G.         §§    4A1.1(a),     4A1.2(e)(1)

(directing the addition of three criminal history points for

“[a]ny prior sentence of imprisonment exceeding one year and one

month that was imposed within fifteen years of the defendant’s


     1
       The PSR does not explain the probation officer’s choice of
July 23, 2005 as the commencement date. The reason is obvious,
however:   it was the first date after Hernandez-Frias’s 2004
deportation for which the record conclusively established his
illegal presence in the United States.


                                              3
commencement      of    the     instant         offense”).           Additionally,     the

probation officer added two criminal history points because he

found that Hernandez-Frias committed the instant offense while

under   the    three-year           “good       behavior”      sentence      imposed   in

September     2005     for    his    first      DUI     conviction.         See   U.S.S.G.

§ 4A1.1(d)     (directing       the       addition       of    two    criminal    history

points “if the defendant committed the instant offense while

under any criminal justice sentence”).                         With the addition of

these   points,      and     others       not       relevant   to    this   appeal,    the

probation officer calculated that Hernandez-Frias had a criminal

history category of V.

     In the district court, neither party initially objected to

the presentence report.               At the sentencing hearing, however,

when the court asked if either party had any objections, defense

counsel stated that Hernandez-Frias “has a question with regard,

apparently, to use of his prior record in [the] calculation of

his sentencing guidelines, [in that] some of the items on the

record are old.”           Counsel continued that the objection “has to

do with when this criminal conduct started, how long before, you

know, the 15 years’ issue.”               Defense counsel offered that he did

not “think we’ve got a valid objection” on that issue.                                 The

district     court     granted        a     recess      for    defense      counsel    and

Hernandez-Frias to confer.                  After the recess, Hernandez-Frias

stated on the record that he had no objections.                          The court then

                                                4
adopted   the   presentence    report     as   tendered     by   the   probation

officer, which yielded an advisory Guidelines range of 70 to 87

months.

     Upon     hearing    the   parties’        sentencing     arguments,    the

district court sentenced Hernandez-Frias to 72 months in prison.

The court stated that it had considered the 18 U.S.C. § 3553(a)

factors and that it believed that a within-Guidelines sentence

would accomplish the goals of those factors.                 After announcing

the sentence, the court informed Hernandez-Frias that “it would

have been perfectly legitimate to have imposed the punishment of

87 months, but I did not feel it was a justifiable use of the

public funds to incarcerate you for the extra 15 months.                 And if

you don’t learn in 72 months, you aren’t going to learn in 87

months that you can’t come back to this country without legal

permission.”

     Hernandez-Frias timely noted this appeal.



                                    II.

                                    A.

     Title 8, section 1326 of the U.S. Code prohibits aliens who

have been previously removed from this country from “enter[ing],

attempt[ing] to enter, or [being] . . . found in, the United

States”     without   permission   from    the    U.S.      Attorney    General.

Hernandez-Frias pleaded guilty to the offense of being “found

                                     5
in” the United States.              On appeal, Hernandez-Frias argues that

the    district      court    miscalculated            his    criminal    history      score

under the Sentencing Guidelines because it used the wrong date

for    the   commencement      of    his     offense.           He     asserts    that   the

offense of being “found in” the United States commences on the

date that immigration authorities discover a defendant in the

United States.         Thus, according to Hernandez-Frias, his offense

commenced on June 30, 2009 -- not July 23, 2005 as stated in his

PSR.       If his offense commenced on June 30, 2009, he notes that

the district court should not have assessed criminal history

points under U.S.S.G. § 4A1.1(a) or U.S.S.G. § 4A1.1(d) and the

exclusion of these points would have produced a lower applicable

Guidelines range.

       In assessing a challenge to a district court’s application

of    the    Guidelines,      we    typically          review    the    court’s       factual

findings      for    clear   error    and    its       legal    conclusions       de   novo.

United      States    v.   Allen,    446     F.3d      522,     527    (4th   Cir.     2006).

Because Hernandez-Frias did not object to the calculation of his

criminal      history      score    before       the    district       court,    we    review

Hernandez-Frias’s claim for plain error. 2                      To prevail, Hernandez-


       2
       The Government contends that by withdrawing his objection
at the sentencing hearing Hernandez-Frias waived his claim
entirely. See United States v. Olano, 507 U.S. 725, 733 (1993)
(comparing “waiver” and “forfeiture”). Hernandez-Frias counters
that this court should not find waiver because the record does
(Continued)
                                             6
Frias must demonstrate that the district court committed error,

that the error was plain, and that the error affected Hernandez-

Frias’s    substantial        rights.       Fed.    R.    Crim.    P.   52(b);   United

States v. Olano, 507 U.S. 725, 731-32 (1993).                       We hold that he

cannot     do    so;    the    district     court    did     not    plainly      err    in

calculating his criminal history score.

     The        first     criminal      history          enhancement      at     issue,

§ 4A1.1(a), instructs the district court to add three points to

the defendant’s criminal history score for each prior sentence

of imprisonment exceeding thirteen months.                   U.S.S.G. § 4A1.1(a).

Such a prior sentence counts only if it “was imposed within

fifteen years of the defendant’s commencement of the instant

offense” or “resulted in the defendant being incarcerated during

any part of such fifteen-year period.”                    U.S.S.G. § 4A1.2(e)(1).

The Guidelines commentary explains that “the term ‘commencement

of the instant offense’ includes any relevant conduct.”                                Id.

cmt. n.8 (citing U.S.S.G. § 1B1.3(a)(1)).

     Abundant      case       law   holds   that    the    “relevant     conduct”       of

being “found in” the United States commences on the date that




not make clear that Hernandez-Frias’s objection at the hearing
was the same as the claim he now raises on appeal.        Indeed,
defense   counsel’s  explanation   to  the   district  court   of
Hernandez-Frias’s objection was hardly precise.      We need not
address this dispute, however, because we reject Hernandez-
Frias’s claim even under plain error review.


                                            7
the defendant illegally reenters the country and continues until

he or she is discovered by immigration authorities.                           See, e.g.,

United States v. Delgado-Hernandez, 646 F.3d 562, 567 (8th Cir.

2011); United States v. Hernandez-Guererro, 633 F.3d 933, 937

(9th Cir. 2011); United States v. Hernandez-Gonzalez, 495 F.3d

55, 60-61 (3d Cir. 2007); United States v. Ruiz-Gea, 340 F.3d

1181, 1189 (10th Cir. 2003); United States v. Mendez-Cruz, 329

F.3d 885, 889 (D.C. Cir. 2003); United States v. Lopez-Flores,

275 F.3d 661, 663 (7th Cir. 2001).                    In accord with our sister

circuits,     we     conclude    that     the     offense         of   the    defendant,

Hernandez-Frias,          commenced     upon    his        reentry     to    the     United

States,     not    when    he   was    “found”        in    the    United     States     by

immigration authorities.              Because the record does not disclose

the   precise      date    of   Hernandez-Frias’s           reentry,        the    district

court reasonably used the date of his July 23, 2005 DUI as the

commencement date -- the first date that the record conclusively

establishes       Hernandez-Frias’s       illegal          presence    in     the    United

States following his 2004 deportation.

      Using July 23, 2005 as the offense commencement date, the

district     court      appropriately         added    criminal        history       points

pursuant     to     §     4A1.1(a)      for     Hernandez-Frias’s             1990     drug

conviction.        Hernandez-Frias’s 1990 drug conviction carried a




                                          8
sentence    exceeding       thirteen   months 3    and       it     resulted      in    his

incarceration within fifteen years of July 23, 2005.                        Therefore,

the district court properly assessed criminal history points for

that prior conviction under § 4A1.1(a).

     The district court also properly assessed criminal history

points    because    Hernandez-Frias         committed       part    of    his    §    1326

offense while under a probationary sentence for his 2005 DUI

conviction.        Section 4A1.1(d) and its commentary instruct the

district    court    to    add   two   points     to   a     defendant’s         criminal

history    score    “if    the   defendant      committed         any     part    of   the

instant offense (i.e., any relevant conduct) while under any

criminal    justice       sentence.”     U.S.S.G.        §    4A1.1(d)      cmt.       n.4.

Hernandez-Frias’s 2005 DUI conviction carried a three year good-

behavior sentence.          Thus, Hernandez-Frias’s illegal presence in

the United States overlapped with his good-behavior sentence and

the district court appropriately added criminal history points

under § 4A1.1(d).




     3
       Hernandez-Frias’s original sentence for the 1990 drug
conviction was incarceration for 240 days followed by 36 months
of probation.     But, on September 21, 1990, Hernandez-Frias
received an additional 180 days incarceration for a probation
violation.    Under U.S.S.G. § 4A1.2(k)(1), such revocation
sentences are added to the original term of imprisonment for the
purposes of computing criminal history points, thereby carrying
Hernandez-Frias over the thirteen month threshold.


                                         9
                                          B.

      We also reject Hernandez-Frias’s alternative argument that,

even if his offense commenced upon his illegal reentry to the

United States, his offense could not have commenced prior to

December     2007.         The    unrebutted        evidence          in        the    record

establishes that Hernandez-Frias was in the United States as of

July 23, 2005.            But based on a stray statement in his PSR,

Hernandez-Frias       asserts     that    his     most   recent       reentry          to   the

United States occurred in December 2007 or later.                               He did not

raise    this     point   in   the   district      court,    and       we       reject      his

argument     as    lacking     adequate    factual       support       to       show     plain

error.

      Hernandez-Frias’s assertion that he left the United States

after July 23, 2005 rests entirely on the single statement in

his   PSR   that    he    “last   saw     his    children    in       December         2007.”

Because     his   children     reside     in     Mexico,    he    claims         that       this

statement proves that he visited Mexico in December 2007.                                   But

Hernandez-Frias’s         argument       would     require       us        to     make      the

circumstantial inference that simply because Hernandez-Frias saw

his children in December 2007, he must have traveled to Mexico

to do so.       But, of course, it is also possible that the children




                                          10
came to the United States. 4             And Hernandez-Frias offered no other

evidence of his alleged return to Mexico.                        On this record, the

PSR’s lone nonspecific reference to seeing his children is far

from sufficient to establish that the district court plainly

erred     by    not    dating   the      commencement          of    Hernandez-Frias’s

offense to December 2007.



                                          III.

      Finally,        Hernandez-Frias      argues       that     the      district    court

committed       reversible      error         in       failing       to     provide       an

individualized explanation of his criminal sentence in light of

the factors enumerated under 18 U.S.C. § 3553(a).                               See United

States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (“Regardless

of   whether     the    district    court       imposes     an      above,      below,   or

within-Guidelines         sentence,      it     must    place       on    the   record    an

‘individualized assessment’ based on the particular facts of the

case before it.”); see also United States v. Lynn, 592 F.3d 572,

576, 581 (4th Cir. 2010).                 The Government concedes that the

district       court    committed     procedural         error       in    providing      an

inadequate       explanation       for     Hernandez-Frias’s              sentence,      but



      4
       The PSR additionally states that Virginia Steel Erectors
employed Hernandez-Frias “[f]rom 2000 until his arrest for the
instant offense,” suggesting his continuous presence in the
United States.


                                           11
contends that the error was harmless.                            Gov’t Br. at 43.                 We

agree.

      As a threshold matter, we note that Hernandez-Frias did

properly preserve an objection to his sentence.                                 To preserve a

challenge     to        an     insufficiently             explained           sentence,          “the

defendant    need       not        specifically      object          after     the       court   has

pronounced    a     sentence,          but    he    must        at     some    point       in    the

proceedings       ‘draw[]          arguments       from    §     3553        for     a    sentence

different than the one ultimately imposed . . . .’”                                         United

States v. Powell, 650 F.3d 388, 395 (4th Cir. 2011) (quoting

Lynn, 592 F.3d at 576).                 By requesting a sentence “at the low

end   of    the    advisory          guidelines”         and     the    “minimum          sentence

recommended        by        the     advisory       guidelines,”              Hernandez-Frias

effectively requested a sentence of 70 months.                                     The district

court,     however,       sentenced          him    to     72    months        incarceration.

Accordingly,       Hernandez-Frias             preserved         an     objection          to    his

sentence.

      Because he preserved an objection, we apply harmless error

review in considering whether the district court’s procedural

error warrants reversal.                 Lynn, 592 F.3d at 579.                      Under that

standard,     “the       government          may    avoid        reversal          only     if    it

demonstrates       that      the     error    did    not       have     a     substantial         and

injurious effect or influence on the result and we can say with

fair assurance, that the district court’s explicit consideration

                                               12
of    [the    defendant’s]         arguments      would    not    have       affected           the

sentence imposed.”            United States v. Boulware, 604 F.3d 832, 840

(4th       Cir.   2010)      (internal      quotation      marks       and    alterations

omitted).         The      Government      has   satisfied      that   burden             in   this

case.

       At sentencing, Hernandez-Frias made several straightforward

arguments under 18 U.S.C. § 3553(a), namely that his age, the

age     of     his      prior      convictions,      and     the       impact             of    his

incarceration         on    his    family    counseled     in    favor       of       a    lesser

sentence.         The record in this case indicates that the district

court       considered      and    appreciated     Hernandez-Frias’s              §       3553(a)

arguments.            After       hearing    Hernandez-Frias’s           arguments              and

personal allocution, the court stated that it had considered the

§ 3553(a) factors and believed that a within-Guidelines sentence

for        Hernandez-Frias         would     accomplish         the     objectives              of

§ 3553(a). 5         Then, the district court sentenced Hernandez-Frias

to 72 months imprisonment -- only two months above the sentence

Hernandez-Frias requested (and fifteen months below the sentence

requested by the Government).



       5
        Additionally, earlier in the sentencing hearing, the
district court granted a recess for Hernandez-Frias and his
counsel to confer over a possible objection to the age of his
prior convictions, suggesting that the court was aware that the
staleness of Hernandez-Frias’s prior convictions was a relevant
consideration.


                                             13
     Hernandez-Frias      raised   uncomplicated,        relatively   weak

sentencing   arguments.     Although    the   district    court   erred   by

failing to address them specifically on the record, we believe

that a remand for resentencing would not change the sentence

imposed given that the district court sentenced Hernandez-Frias

to nearly the sentence that he requested.        Boulware, 604 F.3d at

840 (declining to remand for resentencing where such a remand

would be “pointless”).      Indeed, on this record, we believe that

the district court undertook the analysis required by Carter,

but simply failed to make that analysis explicit.             Under these

circumstances, the district court’s error was harmless.

     Accordingly, we affirm the judgment of the district court.



                                                                  AFFIRMED




                                   14
