                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-2240
                                  ___________

United States of America,            *
                                     *
           Appellee,                 *
                                     * Appeal from the United States
      v.                             * District Court for the
                                     * Western District of Arkansas.
Luis Mora-Quinones, also known as    *
Carlos Zamora, also known as Carlos *
Gonzalez,                            *   [UNPUBLISHED]
                                     *
           Appellant.                *
                                ___________

                             Submitted: January 10, 2005
                                Filed: June 17, 2005
                                 ___________

Before SMITH, HEANEY, and COLLOTON, Circuit Judges.
                            ___________

PER CURIAM.

      Luis Mora-Quinones pled guilty to conspiracy to distribute more than 100
kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii) and
846. The district court1 sentenced him to 120 months’ imprisonment and a $1,500
fine. Mora-Quinones appeals his sentence, and we affirm.


      1
      The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas.
       On December 8, 2002, near Alma, Arkansas, the Arkansas State Police stopped
a motor home driven by Gloria Gomez and seized approximately 100 kilograms of
marijuana and 160 pounds of dimethyl sulfone, a cutting agent for methamphetamine,
after a search to which she consented. Gomez explained that a man later identified
as Mora-Quinones had asked her to drive the motor home, and that he and several
others were traveling with her in two separate vehicles at the time of the traffic stop.
Gomez provided a description of these people and their vehicles.

       The next day, a deputy sheriff stopped two vehicles matching the description
given by Gomez near Forrest City, Arkansas, about 300 miles east of Alma. One of
the occupants, identified as “Carlos Gonzales,” was wanted by the Bureau of
Immigration and Customs Enforcement (“ICE”). He was taken into custody, and the
sheriff’s department later learned from ICE that Carlos Gonzales was actually Luis
Mora-Quinones. Mora-Quinones was subsequently indicted by a grand jury in the
Eastern District of Arkansas and charged with illegal re-entry after deportation
following an aggravated felony, in violation of 8 U.S.C. §§ 1326(a)(2) and (b)(2). On
August 12, 2003, he pled guilty to the illegal re-entry charge in the Eastern District
of Arkansas, and he was sentenced to 70 months’ imprisonment in November 2003.

      On March 12, 2003, Mora-Quinones was indicted by a grand jury in the
Western District of Arkansas and charged with one count of conspiracy to distribute
over 100 kilograms of marijuana. In February 2004, after he was sentenced in the
Eastern District for the illegal re-entry offense, Mora-Quinones pled guilty to the drug
conspiracy charge in the Western District of Arkansas. He was sentenced to 120
months’ imprisonment and a $1500 fine. The district court ordered the sentence to
run concurrently with his 70-month sentence for illegal re-entry.

      The sole issue raised by Mora-Quinones on appeal is whether the district court
abused its discretion by counting his conviction for illegal re-entry as a prior
conviction for the purpose of computing his criminal history score under the

                                          -2-
sentencing guidelines. Mora-Quinones argues that the illegal re-entry should have
been considered “relevant conduct” with respect to his drug trafficking offense, see
USSG § 1B1.3, and thus should not have been factored into his criminal history. The
district court overruled Mora-Quinones’s objection, adopting the Probation Office’s
response.2 The consideration of the additional conviction increased Mora-Quinones’s
criminal history from Category V to Category VI, and correspondingly increased the
applicable guideline sentencing range from 100-125 months to 110-136 months.

       When application of the guidelines involves mixed questions of law and fact,
we review for abuse of discretion. United States v. Weiland, 284 F.3d 878, 882 (8th
Cir. 2002). A “district court abuses its discretion when it makes an error of law or
a clearly erroneous assessment of the evidence.” Id. “Whether a conviction was
relevant conduct involves a fact intensive inquiry, an inquiry well within ‘the district
court’s sentencing expertise and greater familiarity with the factual record.’” United
States v. Stone, 325 F.3d 1030, 1031 (8th Cir. 2003) (quoting Weiland, 284 F.3d at
882).

      “The guidelines direct courts to count any previous sentence in calculating a
defendant’s criminal history, as long as the sentence was not for conduct that is ‘part


      2
       The Probation Office’s response read:

      [Mora-Quinones] was stopped for suspicion of drug trafficking based on
      the stop of a co-defendant in Western Arkansas. His status as an illegal
      alien was not used as relevant conduct in the drug offense. Had the
      defendant been prosecuted in one district on both offenses together, the
      cases would not be grouped under the sentencing guidelines. The
      immigration offense would have to be utilized as relevant conduct in
      determining the offense level for the drug trafficking offense to not be
      counted as a prior sentence. This is not the case here.

Addendum to the Presentence Report, at 2

                                          -3-
of the instant offense.’” Weiland, 284 F.3d at 881 (quoting USSG § 4A1.2(a)(1)).
“Conduct 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).” USSG
§4A1.2 cmt. n.1. “Conduct underlying a prior conviction is not relevant to the instant
offense if the former conviction was a ‘severable, distinct offense’ from the latter.”
Weiland, 284 F.3d at 882 (quoting United States v. Davidson, 195 F.3d 402, 409 (8th
Cir. 1999)). “Factors useful in determining whether the two offenses are severable
and distinct are temporal and geographical proximity, common victims, common
scheme, charge in the indictment, and whether the prior conviction is used to prove
the instant offense.” Stone, 325 F.3d at 1032.

      The government cites United States v. Troncoso, 23 F.3d 612 (1st Cir. 1994),
in support of the district court’s decision. Troncoso was convicted of illegal re-entry.
His immigration violation came to light as a result of his arrest and subsequent
conviction for distributing cocaine. When he was sentenced for the immigration
offense, the district court counted the drug trafficking conviction in calculating the
defendant’s criminal history. The court found that the two offenses were severable
and distinct, and that the only connection between Troncoso’s illegal entry and his
drug violation was that his arrest for the latter led to his arrest for the former. The
First Circuit held that the district court’s factual determination was not clearly
erroneous and affirmed the sentence. Id. at 617.

       We agree with the reasoning of Troncoso, and we believe it is applicable here.
The district court found that Mora-Quinones’s illegal re-entry was not relevant
conduct with respect to his drug trafficking offense. Illegal re-entry, when
accomplished surreptitiously, is a continuing violation that is not complete until the
alien is discovered by immigration authorities. United States v. Gomez, 38 F.3d 1031,
1034-35 (8th Cir. 1994). Where one offense occurs in the course of another ongoing
offense, “a defendant is not entitled to merge all criminal activities simply because
these activities occurred over a single span of time.” United States v. Torres-Diaz,

                                          -4-
60 F.3d 445, 448 (8th Cir. 1995). The geographical and temporal proximity between
the drug trafficking offense and the discovery of Mora-Quinones in the United States
after his illegal re-entry did not indicate any meaningful connection between the
offenses, and none of the other useful factors tends to establish that the unlawful re-
entry was part of the drug trafficking crime. We see no abuse of discretion in the
district court’s finding that the two offenses were severable and distinct, and the
judgment of the district court is affirmed.3
                        ______________________________




      3
       Mora-Quinones has raised no challenge to his sentence based on United States
v. Booker, 125 S. Ct. 738 (2005).

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