                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-19-2007

USA v. Hernandez-Gonzalez
Precedential or Non-Precedential: Precedential

Docket No. 06-1998




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PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                   Nos. 06-1998 & 06-2130


              UNITED STATES OF AMERICA,

                           Appellant in Appeal No. 06-1998

                               v.

          MAGDALENO HERNANDEZ-GONZALEZ,

                          Appellant in Appeal No. 06-2130


APPEAL FROM THE UNITED STATES DISTRICT COURT
  FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                  Criminal No. 05-cr-00507
    District Judge: The Honorable Mary A. McLaughlin


                    Argued: May 23, 2007


 Before: CHAGARES, HARDIMAN, and TASHIMA,* Circuit
                      Judges

                 (Opinion Filed July 19, 2007)




      *
        The Honorable A. Wallace Tashima, Senior Circuit Judge,
United States Court of Appeals for the Ninth Circuit, sitting by
designation.
Richard J. Zack, Esq. (Argued)
Assistant United States Attorney
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106

Counsel for Appellant/Cross-Appellee United States


David L. McColgin, Esq. (Argued)
Assistant Federal Defender
Federal Community Defender Office
for the Eastern District of Pennsylvania
Suite 540 West - Curtis Center
601 Walnut Street
Philadelphia, PA 19106

Counsel for Appellee/Cross-Appellant Magdaleno Hernandez-
Gonzalez



                  OPINION OF THE COURT



TASHIMA, Circuit Judge.

       The United States appeals the sentence imposed on
Magdaleno Hernandez-Gonzalez (“Hernandez”) following his
conviction under 8 U.S.C. § 1326(a) for being an alien found in the
United States following deportation. The question we must answer
is whether the date that the offense commenced, for purposes of
calculating the criminal history score, is the date that Hernandez
entered the United States, or the date that he was found in the
United States by immigration authorities. Relying on our decisions
in United States v. DiSantillo, 615 F.2d 128 (3d Cir. 1980), and
United States v. Lennon, 372 F.3d 535 (3d Cir. 2004), the district
court concluded that the relevant date was the date that Hernandez
was found by immigration authorities. We conclude that DiSantillo
and Lennon are distinguishable and hold that the date that the

                                2
offense commenced for purposes of calculating the criminal history
score is the date that Hernandez entered the United States. We
therefore vacate the sentence and remand for the district court to
determine the date of entry and resentence accordingly.1 We have
jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

                                 I.

       Hernandez, a native and citizen of Mexico, legally entered
the United States in 1990 when he was 18 years old. From 1990 to
1992, Hernandez suffered five convictions – possession of bad
checks, driving under the influence, attempted grand theft, forgery,
and possession of forged notes. In 1994, Hernandez pled nolo
contendere to a charge of oral copulation by acting in concert with
force and was sentenced to eight years in state prison. On January
6, 1998, Hernandez was paroled to immigration authorities and
deported to Mexico.

        Hernandez stayed in Mexico for approximately one year
before reentering the United States illegally. He lived with his
sister’s family, and then with his girlfriend, in Norristown,
Pennsylvania. In March 2005, police officers were called to
Hernandez’s residence following an altercation between Hernandez
and his girlfriend. Officers arrested Hernandez after they saw
cocaine in his pocket. Hernandez pled guilty to possession of
cocaine and, following his hearing on that charge, he was arrested
by immigration authorities.

       Hernandez was indicted on one count of being found in the


       1
               Hernandez cross-appeals the district court’s refusal
to depart from the guideline range based on sentencing disparities
between districts with fast-track programs and districts without
them. Fast-track programs “allow defendants who violate § 1326
to receive lower sentences in exchange for waiving certain rights.”
United States v. Vargas, 477 F.3d 94, 98 n.8 (3d Cir.), reh’g
denied, 481 F.3d 868 (3d Cir. 2007). Hernandez’s argument is
foreclosed by Vargas, in which we held that “a district court’s
refusal to adjust a sentence to compensate for the absence of a fast-
track program does not make a sentence unreasonable.” Id. at 99.

                                  3
United States following deportation, in violation of 8 U.S.C. §§
1326(a) and (b)(2). He pled guilty, and a Presentence Investigation
Report (“PSR”) was prepared.

       A defendant’s criminal history is calculated pursuant to §
4A1.2 of the United States Sentencing Guidelines (“USSG”).
Section 4A1.2 provides, in pertinent part, that “[a]ny other prior
sentence that was imposed within ten years of the defendant's
commencement of the instant offense is counted” in the criminal
history score. USSG § 4A1.2(e)(2). The PSR relied on
Hernandez’s “confession to authorities that he immediately
returned to the United States after his deportation in 1998,” and his
statement that he had been living and working in Norristown for
approximately six years at the time of his PSR interview, to
conclude that the “criminal conduct in this case began at least as
early as January 1, 2000.” The PSR accordingly included in the
calculation of Hernandez’s criminal history score his convictions
that dated from 1990. Hernandez objected, arguing that the
effective date of the offense was August 15, 2005, because that was
the date the indictment charged he was found in the United States,
and that his convictions that occurred more than ten years before
this date should not be included in the calculation of his criminal
history score. The government argued that it was undisputed that
the latest Hernandez reentered the United States was January 1,
2000; therefore, that all of his convictions after January 1, 1990,
should be included in the calculation of his criminal history score.

        The district court agreed with Hernandez that the relevant
question for determining the date of the offense was when he was
found by immigration authorities. The government informed the
court that immigration authorities first became aware that
Hernandez was in the country in May 2004, and he was sentenced
on the cocaine charge in August 2005. Relying on those dates, the
court concluded that Hernandez’s criminal history category was III,
resulting in a guideline range of 46 to 57 months. The court
sentenced Hernandez to a term of 46 months. This timely appeal
and cross-appeal followed.



                                 II.

                                 4
       We review the district court’s interpretation of the guidelines
de novo. United States v. Navarro, 476 F.3d 188, 191 (3d Cir.
2007). The district court’s findings of fact are reviewed for clear
error. Id.

                                  III.

        The government contends that the district court erred in
concluding that Hernandez’s instant offense did not commence
until he was discovered by immigration authorities in May 2004.
If the district court had relied on the date the PSR estimated that
Hernandez reentered the United States, January 2000, to calculate
Hernandez’s criminal history, his five convictions between 1990
and 1992 would have been included in the criminal history
calculation.

        “Section 1326(a) contains three separate offenses, phrased
in the disjunctive: (1) illegal re-entry, (2) attempted illegal reentry,
and (3) being found illegally in the United States.” Lennon, 372
F.3d at 537. Hernandez was convicted of the third offense, being
found in the United States. We considered the date of the “found
in” offense in DiSantillo and Lennon, but neither case addressed the
issue we face here.

        The question in DiSantillo was whether the statute of
limitations had run prior to the return of an indictment for illegal
reentry. The defendant, DiSantillo, was arrested and deported in
1962 when he was sixteen years old. He reentered the United
States in 1970 on an immigrant visa, but, because of the earlier
deportation, the government contended that his visa was improperly
obtained and, in 1979, prosecuted him for illegal reentry.
DiSantillo argued that the indictment was barred by the five-year
statute of limitations for § 1326, because the limitations period
began to run at the time he entered the United States in 1970. The
government countered that the limitations period began to run when
DiSantillo was found in the United States in 1976. We rejected the
government’s construction of the statute, reasoning that, “[u]nder
the government's formulation, violation of § 1326 is a continuing
offense effectively tolling the statute of limitations for as long as
the alien remains illegally in the country.” DiSantillo, 615 F.2d at
132.

                                   5
       We relied on the fact that DiSantillo reentered the United
States through an official port of entry, reasoning that Congress’
inclusion of the “found in” offense in the illegal entry statute
indicated its intent to create

       a distinction between surreptitious crossing of the United
       States border and entry at a recognized INS port of entry. .
       . . Congress must have included the word “found” in § 1326
       to alleviate the difficult law enforcement burden of finding
       and prosecuting this class of illegal aliens, who are already
       aware that they are in violation of the law as evidenced by
       their surreptitious entry, before the five year statute of
       limitations runs.

Id. at 135. Because DiSantillo entered through an official port of
entry and filed a report with the INS every year, the government
had “sufficient opportunities to discover DiSantillo’s offense.” Id.
at 136. Reasoning that “[t]he critical event giving rise to this
prosecution and making the offense complete” was DiSantillo’s
1970 entry, we concluded that “the crime of illegal entry through
a recognized INS port of entry after being arrested and deported is
not a continuing offense.” Id. We therefore held that “an alien may
not be indicted under § 1326 more than five years after he entered
or attempted to enter the United States through an official INS port
of entry when the immigration authorities have a record of when he
entered or attempted to enter.” Id. at 137.

       The question in Lennon was when the offense of being
found in the United States was “committed” for purposes of
determining which Guidelines version was applicable. Lennon, the
defendant, was deported in 1993, and she illegally reentered the
United States in 1994, using a pseudonym. She was apprehended
by the INS in 2001 and pled guilty to being found in the United
States in violation of § 1326. Lennon argued that the 1994
guidelines, rather than the 2001 guidelines, should have been used
to calculate her sentence because her “found in” offense occurred
when she illegally entered the United States in 1994.

      Although Lennon’s position seemed consistent with
DiSantillo, we distinguished DiSantillo on the basis that


                                 6
       [t]he logic of DiSantillo-that immigration authorities should
       be imputed with “knowledge” of an alien's presence in the
       United States-does not extend to a case such as this, where
       Lennon affirmatively concealed her identity. To hold
       otherwise would actually favor the illegal entrants who
       affirmatively conceal their identities over those who
       honestly use their own names.

Lennon, 372 F.3d at 541. Relying on this distinction, we concluded
that, “[w]here an alien unlawfully enters with a fictitious name,
even through a recognized port of entry, he is ‘found in’ the United
States when actually discovered.” Id. Lennon’s offense
accordingly was committed when she was apprehended in 2001.
Id.

       In calculating Lennon’s criminal history score, the district
court had included “those of Lennon's offenses that occurred more
than ten years before her 2001 ‘found’ date-implicitly holding that
‘found in’ violations are continuing crimes.” Id. at 538. However,
the district court determined that the criminal history was
overstated and therefore reduced her criminal history category in
sentencing her.

       Lennon raised the issue presented here, arguing that, if her
offense was committed in 2001, the district court should not have
considered her pre-1991 crimes in determining her sentence. We
did not reach the issue, reasoning that any error in considering
Lennon’s pre-1991 crimes in calculating her criminal history was
harmless because the district court based her sentence on the lower
criminal history category. Id. at 541-42.

       We noted the merit of the government’s argument that being
found in the United States is a continuing offense, stating that “the
passage of time does not give rise to a de facto amnesty that
legalizes an unlawful alien's presence.” Id. at 541 n.8. We
recognized that the question was “addressed, to a limited extent,”
in DiSantillo and that numerous courts had held to the contrary of
DiSantillo, but declined to reexamine DiSantillo. Id.; see also id.
at 541 n.9 (noting the government’s argument that “there is no error
because Lennon’s offense was a continuing one, lasting from 1994
through 2001,” and stating that “[t]his is arguably inconsistent with

                                 7
DiSantillo, but we need not reach the question”).

        We conclude that both DiSantillo and Lennon are
distinguishable from the instant case and that neither case addressed
the issue presented here. First, we have interpreted DiSantillo’s
holding as being limited to the statute of limitations context where
immigration authorities were aware of the entry. See id. at 540
(stating that “DiSantillo held that illegal re-entry begins, for statute
of limitations purposes, when the alien presents himself
non-surreptitiously . . . at an open point of entry even though
immigration personnel failed to react”); see also United States v.
Dixon, 327 F.3d 257, 259 (3d Cir. 2003) (“In DiSantillo, we held
that being found in the United States is not a continuing offense
when the alien entered through a recognized port of entry, and
therefore the five-year statute of limitations begins to run when the
deported alien passed through the recognized port of entry.”).
DiSantillo itself limited its conclusion that the crime of illegal entry
was not a continuing offense to the situation where entry is
“through a recognized INS port of entry.” DiSantillo, 615 F.2d at
136.

       Second, Lennon specifically declined to address the question
of whether the offense of being found in the United States was a
continuing offense where the reentry was not known to immigration
authorities. See Lennon, 372 F.3d at 541 n.8 (acknowledging that
numerous courts had held that the “found in” offense is a
continuing crime, but stating that “we need not confront the
continued viability of DiSantillo in this case”). To the contrary, we
reasoned in Lennon that the logic of DiSantillo does not apply
where the alien entered surreptitiously, by, for example, concealing
his or her identity, because “[t]o hold otherwise would actually
favor the illegal entrants who affirmatively conceal their identities
over those who honestly use their own names.” Id. at 541.

        Unlike DiSantillo, Hernandez reentered the United States
surreptitiously. If his offense did not commence when he first
entered the United States, this would present the anomalous
situation of the alien committing the act of illegal entry, but then
being free of criminal liability until he or she commits the act of
being found in the country illegally. See id. at 541 n.8 (stating that
“the passage of time does not give rise to a de facto amnesty that

                                   8
legalizes an unlawful alien’s presence”); United States v. Lopez-
Flores, 275 F.3d 661, 663 (7th Cir. 2001) (“It would be passing odd
to say that Lopez had violated the statute when he entered but then
was free of further criminal culpability until he was discovered by
the INS.”). DiSantillo accordingly does not control this case.

       Finally, although Lennon stated that, in the case of a
surreptitious reentry, the alien is “‘found in’ the United States when
actually discovered” by immigration authorities, Lennon, 372 F.3d
at 541, the relevant date for purposes of § 4A1.2(e)(2) is the
“commencement of the instant offense.” Lennon simply does not
address the date the offense is commenced.

        Section 4A1.2(e)(2) states that a prior sentence is to be
counted in the criminal history score if it was imposed within ten
years of the commencement of the instant offense. USSG §
4A1.2(e)(2). The Guideline commentary provides that, in
determining the applicable time period, “the term ‘commencement
of the instant offense’ includes any relevant conduct.” Id., cmt. n.8
(citing USSG § 1B1.3 (Relevant Conduct)). Section 1B1.3
includes as relevant conduct all acts “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.” USSG § 1B1.3(a)(1). This
language indicates that the relevant conduct of entering the United
States should be considered in determining when the offense of
being found in the country was commenced. We therefore hold that
the date the offense of being “found in” the United States
commenced, for purposes of calculating the defendant’s criminal
history under § 4A1.2, is the date that the defendant entered the
United States, not the date that he or she was discovered by
immigration authorities. Our holding is in accord with decisions of
the Seventh and Eleventh Circuits that have addressed the precise
issue presented here. See Lopez-Flores, 275 F.3d 661; United
States v. Castrillon-Gonzalez, 77 F.3d 403 (11th Cir. 1996).

        In Lopez-Flores, the defendant’s sentence for being found in
the United States was enhanced based on a previous conviction.
The indictment charged the defendant with being found in the
United States on November 7, 2000, which was more than ten years
after the prior conviction. However, the district court held that the

                                  9
“found in” offense began when the defendant illegally reentered the
United States sometime before April 1999, which was within ten
years of the prior conviction. The Seventh Circuit stated:

       All the courts to address the question have held that at least
       in the case of surreptitious reentry, as in this case, the
       “found in” offense is first committed at the time of the
       reentry and continues to the time when the defendant is
       arrested for the offense. This is clearly correct. Section
       1326(a) punishes entering, attempting to enter, and being
       found in the United States after being deported. We think
       “found in” must have the force of “present in” rather than
       “discovered by the INS to be in.” The date of discovery has
       no significance so far as culpability is concerned, though it
       may bear on the running of the statute of limitations. It
       would be passing odd to say that Lopez had violated the
       statute when he entered but then was free of further criminal
       culpability until he was discovered by the INS.

Lopez-Flores, 275 F.3d at 663 (citations omitted).

        In Castrillon-Gonzalez, the defendant was arrested for being
found in the United States illegally in December 1993. However,
the date of his illegal entry into the United States was in February
1991. The issue was whether the district court properly enhanced
his sentence for a 1982 conviction, which was more than ten years
before his arrest for the “found in” charge, but less than ten years
before the date of his entry. The Eleventh Circuit reasoned that the
defendant had committed the offense of entering the United States
illegally in February 1991, even though that was not the offense
with which he was charged and to which he pled. Castrillon-
Gonzalez, 77 F.3d at 406. The “found in” crime was commenced
by the illegal entry in February 1991, and it was not completed until
his December 1993 arrest. Id. The court recognized that “[t]he
distinction between completion and commencement is critical”
because § 4A1.2(e)(2) “counts any sentence imposed ‘within ten
years of the defendant’s commencement of the instant offense.’”
Id. (quoting USSG § 4A1.2(e)(2)).

         Section 4A1.2(e)(2)’s use of the term “commencement” and
its reliance on relevant conduct in determining the applicable time

                                 10
period support our holding that the offense of being found in the
United States commences on the date the defendant enters the
United States. This interpretation also is consistent with cases that
hold that the date of the offense charged in the indictment is not
necessarily the relevant date for purposes of determining when the
charged offense was commenced in calculating criminal history
points. See, e.g., United States v. Rosenkrans, 236 F.3d 976, 978
(8th Cir. 2001) (holding that the district court properly assessed
criminal history points for a 1987 offense because the “instant
offense” for purposes of § 4A1.2(e)(2) was not limited to the 1998
transaction underlying the conviction but included earlier drug
transactions that were relevant conduct); United States v. Kennedy,
32 F.3d 876, 890 (4th Cir. 1994) (stating that “sentencing courts
may consider preindictment activity to establish the starting date of
the offense, and then use that date to calculate the time period for
which prior sentences are counted,” under § 4A1.2(e)(1)); United
States v. Kayfez, 957 F.2d 677, 678 (9th Cir. 1992) (per curiam)
(upholding the district court’s reliance on the date the defendant
made counterfeit notes, rather than the date the indictment charged
he possessed the notes, to assign criminal history points, stating that
the date alleged in the indictment is relevant only if the statute of
limitations is implicated or if the defendant shows prejudice in the
preparation of his defense by the listing of a specific date in the
indictment).

       Our conclusion that Hernandez’s “found in” offense
commenced when he entered the United States, rather than when he
was found by immigration authorities, does not end the dispute.
Hernandez contends that the government has failed to prove that his
entry date is January 1, 2000, because of a statement in the PSR
that he visited his parents, who live in Mexico, after that date.

       The only issue before the district court was the legal
question of whether the date of the commencement of the offense
was the date of entry or the date charged in the indictment. The
actual date of entry is a factual question that was not considered by
the district court. We therefore remand in order for the district




                                  11
court to determine the date of entry and resentence accordingly.2

                                IV.

       For the foregoing reasons, we will reverse the sentencing
order of the district court and remand for further proceedings
consistent with this opinion.




       2
              We affirm the district court’s refusal to depart from
the guideline range based on the district’s absence of a fast-track
program.

                                12
