                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 17a0238n.06

                                        Case No. 16-5354

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                   FILED
                                                                                   Apr 26, 2017
                                                                              DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                           )
                                                    )
       Plaintiff-Appellee,                          )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE WESTERN DISTRICT OF
JOSE ROMAN CASTRO,                                  )       KENTUCKY
                                                    )
       Defendant-Appellant.                         )
                                                    )       OPINION
                                                    )


BEFORE: BATCHELDER, STRANCH, and DONALD, Circuit Judges.

       BERNICE BOUIE DONALD, Circuit Judge. This is an appeal from a final judgment

entered on March 10, 2016, in a criminal case involving offenses against the United States.

Appellant Jose Roman Castro (“Castro”) claims that the district court erroneously applied the

sentencing guidelines when it found that, for purposes of 8 U.S.C. § 1326(a), a previously-

deported alien violates 8 U.S.C. § 1326(a) at the time of re-entry to the United States, as opposed

to when the alien is “found in” the United States by law enforcement authorities. As the district

court properly applied the sentencing guidelines in finding that the relevant conduct for being

“found in” the United States includes entry into the United States, we AFFIRM the district court

judgment.
Case No. 16-5354, United States v. Castro


                                                I.
       On July 22, 2015, Castro was working at a restaurant in Louisville, Kentucky when an

Immigration Enforcement Agent with Immigration and Customs Enforcement (“ICE”), went to

the restaurant looking for a man known as Christian Ruiz who had previously made false

statements to agents about his immigration status. R. 11, Page ID #111. That person was

subsequently identified as Castro and was arrested at the restaurant for being illegally present in

the United States. Id. Castro had previously been deported on August 19, 2000, for having an

aggravated felony—a prior drug trafficking conviction. Id. At the time of this arrest, Castro did

not have the permission of the Secretary of the Department of Homeland Security to reapply for

entry into the United States. Castro told the agents that he was from Mexico and had been in the

United States for 14 years. Id.

       On August 19, 2015, a federal grand jury returned an indictment and charged Castro with

being an alien who was found in the United States after having been deported, and not having

obtained the express consent of the Secretary of the Department of Homeland Security to reapply

for admission to the country in violation of 8 U.S.C. § 1326(a) and (b)(2) (Count 1). R. 10, Page

ID #14. Castro was also charged with possession of a counterfeit and falsely made Alien

Registration Receipt Card (green card) in violation of 8 U.S.C. § 1546(a) (Count 2) and

knowingly using a false identification document (“green card”) to satisfy a requirement of the

employment verification system in violation of 18 U.S.C. § 1546(b)(2) (Count 3). R. 1, Page ID

#14-15.

       The parties entered into a plea agreement, which included an appellate waiver, under

Federal Rule of Criminal Procedure 11(c)(1)(C) and agreed, for sentencing guideline purposes,

to a total offense level of 13, which was calculated based on a base offense level of 8 under

U.S.S.G. § 2L1.2(a); a 12-level enhancement under § 2L1.2(b)(1)(A); a 3-level reduction for

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Case No. 16-5354, United States v. Castro


acceptance of responsibility under § 3E1.1(a) and (b); and a 4-level reduction for a fast-track

disposition under § 5K3.1. R. 23, Page ID #47. The government recommended a sentence at

the low end of the guideline range. R. 23, Page ID # 156. Under the 2015 Guidelines Manual,

the probation office determined that Castro’s total offense level was 21 and his criminal history

category was III, which produced a guideline range of 46 to 57 months. R. 30, Page ID #112,

116, 120. The guideline calculation in the Presentence Investigation Report (“PSR”) used a base

offense level of 8 under U.S.S.G § 2L1.2(a); a 16-level enhancement under § 2L1.2(b)(1)(A);

and a 3-level reduction for acceptance of responsibility. R. 30, Page ID #112.

       The government and defense counsel objected to the PSR’s total offense level and argued

that the 12-level enhancement applied because Castro’s drug trafficking conviction in North

Carolina occurred more than 15 years prior to his arrest in the instant case on July 22, 2015.

R. 28, Page ID #94; R. 30, Page ID #123-24. The government explained that Castro’s North

Carolina conviction was completed on June 18, 2000, is 15 years and 34 days before he was

arrested in this case on July 22, 2015. Therefore, the government argued Castro should not

receive any criminal history points for that conviction since it was more than 15 years old.

R. 28, Page ID #94. Castro’s counsel objected to the 16-level enhancement for the same reasons

articulated by the government. R. 30, Page ID #123-24.

       The probation office, however, stated that Castro admitted to law enforcement officers

that he had been in the United States for 14 years. R. 30, Page ID #123-24. Consequently,

Castro’s admission placed him within the 15-year time period that triggered the 16-level

enhancement. Id. At sentencing, the government changed its position and agreed with the

probation office that the 16-level enhancement applied. After briefing, the district court ruled

that the 16-level enhancement applied and thus rejected the plea agreement. R. 39, Page ID



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Case No. 16-5354, United States v. Castro


#176. Since the district court planned to impose a higher sentence than that contemplated in the

plea agreement, the district court gave Castro the opportunity to withdraw his guilty plea. Castro

declined, and the parties again agreed to all terms of the plea agreement with the exception of the

guideline calculations and the appellate waiver.

       With a total offense level of 21 and a criminal history category of III, the guideline range

was 46 to 57 months. R. 39, Page ID #178. The court granted the government’s motions for a

2-level reduction under U.S.S.G § 5K1.1 and a 4-level reduction under the fast-track program (§

5K3.1) which resulted in a total offense level of 15, a criminal history category of III, and a

guideline range of 24 to 30months. The government recommended a sentence of 24 months. R.

39, Page ID #179. The district court sentenced Castro to concurrent terms of twenty-four

months imprisonment on each of the three counts of indictment, to be followed by a one-year

term of supervised release. R. 34, Page ID #131-32; R. 39, Page ID #180-82.

                                                   II.
       “Questions involving the interpretation of the Guidelines are legal issues that we review

de novo.” United States v. Powell, 798 F.3d 431, 437 (6th Cir. 2015) (citations omitted); United

States v. Sanbria-Bueno, 549 F.App’x 434, 438 (6th Cir. 2013) (citation omitted) (construing

U.S.S.G § 2L1.2) (“We review the district court’s legal interpretation of the Guidelines de

novo.”).

                                               III.
       With regard to offenses involving unlawfully entering or remaining in the United States,

§ 2L1.2 of the 2015 Guidelines Manual (the Guidelines in effect at the time Castro was

sentenced) provides in relevant part:

       If the defendant previously was deported, or unlawfully remained in the United
       States, after —



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Case No. 16-5354, United States v. Castro


       (A) A conviction for a felony that is (i) a drug trafficking offense for which the
           sentence imposed exceeded 13 months . . . increase by 16 levels if the
           conviction receives criminal history points under Chapter Four or by 12 levels
           if the conviction does not receive criminal history points . . . .

“Any prior sentence of imprisonment exceeding one year and one month that was imposed

within fifteen years of the defendant's commencement of the instant offense is counted.” USSG §

4A1.2(e)(1) (emphasis added). Though the sentencing guidelines are no longer binding on

district courts, United States v. Booker, 543 U.S. 220, 245 (2005), the Supreme Court has

instructed courts to give “respectful consideration” to the guidelines, the commentary, and

relevant policy statements, see Pepper v. United States, 562 U.S. 476, 501 (2011); see also

United States v. Douglas, 634 F.3d 852, 862 (6th Cir. 2011) (“[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.”)

(quoting Stinson v. United States, 508 U.S. 36, 38 (1993)); United States v. Lay, 583 F.3d 436,

446 (6th Cir. 2009).

       In keeping with the Supreme Court’s instruction, this court looks to the commentary to

U.S.S.G. § 4A1.2, which provides, “Section 4A1.2(d)(2) and (e) establishes the time period

within which prior sentences are counted.         As used in § 4A1.2(d)(2) and (e), the term

‘commencement of the instant offense’ includes any relevant conduct.” U.S.S.G § 4A1.2 App.

n.8 (emphasis added). The issue is whether Castro’s reentry counts as “relevant conduct” in

determining when his crime commenced. We hold that it does. Castro necessarily engaged in

the “relevant conduct” of being “found in” the United States every day he maintained illegal

presence within the country, including the day he first entered which was within the 15-year time

period that triggered the 16-level enhancement. We previously addressed this issue in United

States v. Galvan-Guajardo, which found that “[e]ntering the United States is relevant to the


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Case No. 16-5354, United States v. Castro


crime of ‘being found in’ the United States. Accordingly, for purposes of USSG § 4A1.2(e)(1),

the crime of ‘being found in’ the United States without proper authorization may commence

when the deported alien is present in the United States.” 78 F. App’x 477, 480-81 (6th Cir.

2008). Therefore, the district court properly applied the sentencing guidelines in finding that the

relevant conduct for being “found in” the United States included Castro’s entry into the United

States.

                                          CONCLUSION
          For the foregoing reasons, we AFFIRM the final judgment of the district court.




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