                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT



                                No. 01-50235

                             Summary Calendar


UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                                   versus

JUVENTINO MENDOZA-TOVAR,

                                                Defendant-Appellant.



            Appeal from the United States District Court
                  for the Western District of Texas
                            (A-00-CR-236)

                            September 24, 2001


Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

      Juventino Mendoza-Tovar appeals the sentence imposed following

his conviction for possession of a firearm by a felon in violation

of 18 U.S.C. § 922(g)(1) and illegal reentry after deportation in

violation of 8 U.S.C. § 1326(b)(2).         Mendoza-Tovar argues that the

district court improperly applied a two-level enhancement under

U.S.S.G. § 4A1.1(d) for the offense having been committed while



      *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
Mendoza-Tovar was serving a criminal justice sentence.                   Mendoza-

Tovar did not object to this enhancement before the district court,

and as a result, our review is for plain error.1                  We may thus

reverse only if the error is clear and it affects the defendant’s

substantial rights.2

      The Government agrees that the district court erred,3 but

argues that the error did not affect substantial rights because the

district court additionally erred by not imposing a two-level

enhancement because the crime of reentry was committed “less than

two years after release from imprisonment on a sentence counted

under (a) or (b) or while in imprisonment or escape status on such

sentence.”4      Mendoza-Tovar was released by the state of Kentucky on

December 1, 1997 and he was in the United States in June, 1999,

when he was arrested for assault in Austin, Texas.               We have held

that a violation of § 1326 is a continuing offense that “begins at

the time the defendant illegally re-enters the country and does not

become complete unless or until the defendant is found by the INS




      1
          United States v. Ocana, 204 F.3d 585, 588 (5th Cir. 2000).
      2
          United States v. Miranda, 248 F.3d 434, 443 (5th Cir. 2001).
      3
        There is no dispute that Mendoza-Tovar was not under a criminal justice
sentence at any time from his 1999 illegal reentry into the United States until
his arrest in Travis County, Texas on July 2, 2000.        While Mendoza-Tovar
committed an assault in June, 1999, he was not sentenced until September, 2000,
after he had been arrested on the felon in possession and illegal reentry
offenses. Thus, he was not under a criminal justice sentence when he committed
either of the instant offenses.
      4
          U.S.S.G. § 4A1.1(e).

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in the United States.”5          Therefore, the Government is correct that

Mendoza-Tovar should have received a two-level enhancement under

U.S.S.G. § 4A1.1(e).

     Mendoza-Tovar,           however,    argues    that   since    the   Government

failed to raise this objection to the district court, and they have

not raised the issue on appeal that we cannot address it.6                     While

the Government did not cross-appeal, it notes that our review here

is for plain error only, and that the defendant’s substantial

rights cannot be affected where he received precisely the treatment

the guidelines required (albeit as a result of two incorrect

applications     of     the    guidelines).        We   need   not   resolve   this

question, because we find that there are adequate alternative

grounds for the district court to have imposed the two-level

enhancement.       As the Government notes, Mendoza-Tovar was, at

sentencing, an excellent candidate for an upward departure under

U.S.S.G. § 4A1.3.        When Mendoza-Tovar was arrested, he had set a

vehicle     on   fire    and     used    his   firearm     (which    he   possessed

unlawfully) to shoot out its tires.                Mendoza-Tovar had previously

served only four years of an eight-year sentence for manslaughter

in Kentucky, and he was a multiple offender against the immigration

laws of the United States.               “Reviewing for plain error, we will

uphold a defendant’s sentence if on remand the district court could



     5
         United States v. Corro-Balbuena, 187 F.3d 483, 485 (5th Cir. 1999).
     6
         United States v. El-Zoubi, 993 F.2d 442, 450 (5th Cir. 1993).

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reinstate the same sentence by relying on a reasonable application

of the Sentencing Guidelines.”7

     For the foregoing reasons, we AFFIRM.




      7
        United States v. Ravitch, 128 F.3d 865, 871 (5th Cir. 1997) (citing
United States v. Brunson, 915 F.2d 942, 944 (5th Cir. 1990)).

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