U.S. v. Alvarado-Santilano, 05-10261.

• Decision Date: 29 December 2005
• Docket Number: No. 05-10261.,05-10261.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Aquiles ALVARADO-SANTILANO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

434 F.3d 794

UNITED STATES of America, Plaintiff-Appellee, v. Aquiles ALVARADO-SANTILANO, Defendant-Appellant.

No. 05-10261.

United States Court of Appeals, Fifth Circuit.

December 29, 2005.

Marcus James Busch (argued), Dallas, TX, for U.S.

Jerry V. Beard, Asst. Fed. Pub. Def. (argued), Lubbock, TX, Ira Raymond Kirkendoll, Fed. Pub. Def., Dallas, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before REAVLEY, GARZA and BENAVIDES, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Aquiles Alvarado-Santilano ("Alvarado") appeals his sentence for illegal reentry after deportation pursuant to 8 U.S.C. §§ 1326(a) and (b)(2). The district court found that Alvarado had been previously convicted of an aggravated felony, determined that the statutory maximum sentence was therefore twenty years as opposed to two, and increased Alvarado's base offense level by sixteen levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). The district court then assessed two criminal history points pursuant to U.S.S.G. § 4A1.1(b) in light of Alvarado's previous conviction for making a false claim of United States citizenship. Alvarado challenges both of these aspects of his sentence.

Alvarado, a Mexican citizen, was removed from the United States in December, 2002. Immigration authorities found him again in the United States in June, 2004. Alvarado pleaded guilty to one count of illegal reentry after deportation in violation of 8 U.S.C. § 1326. The Pre-Sentence Report ("PSR") set Alvarado's base offense level at 8, added 16 levels because Alvarado had been previously deported after a conviction for involuntary manslaughter, and then subtracted three levels for acceptance of responsibility. The PSR also assessed two criminal history points for a 2001 conviction for making a false claim of citizenship.¹ Alvarado did not object to the PSR at his sentencing hearing. The district court sentenced Alvarado to 79 months, a sentence within the Guideline range as calculated in the PSR. Alvarado now argues that the district court erred in failing to treat his conviction for involuntary manslaughter as an element of his offense and for treating his 2001 conviction as a prior sentence rather than relevant conduct.

Because Alvarado did not object to the PSR in the district court, we review his sentence for plain error. See FED. R.CRIM.P. 52(b); United States v. Villegas, 404 F.3d 355, 358 (5th Cir.2005). We have discretion to correct an error not raised in the district court if: 1) there was error; 2) that was clear or obvious; and 3) that affected substantial rights. Id. The Supreme Court has directed appellate courts only to exercise that discretion, however, when the error has a serious effect on the fairness, integrity, or public reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 736-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

Alvarado argues that the district court plainly erred by treating his prior conviction for involuntary manslaughter as a sentencing factor rather than as an element of his offense. He concedes, however, that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and he raises the error only to preserve it for possible review by the Supreme Court. The Supreme Court has not overruled Almendarez-Torres. See Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 1262-63 & n.5, 161 L.Ed.2d 205 (2005). We must follow Almendarez-Torres "unless and until the Supreme Court itself determines to overrule it." See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000). In light of the continuing validity of Almendarez-Torres, the district court did not err in not treating Alvarado's prior conviction as an element of his § 1326 offense.

Alvarado also challenges the district court's addition of two criminal history points pursuant to U.S.S.G. § 4A1.1(b) based on his prior sentence for falsely claiming to be a United States citizen. A prior sentence is defined as "any sentence previously imposed upon adjudication of guilt ... for conduct not part of the instant offense." U.S.S.G. § 4A1.2(a)(1). Application Note 1 to § 4A1.2 explains that "[c]onduct that is part of the offense means conduct that is relevant conduct to the instant offense under the provisions of § 1B1.3." Alvarado contends that his claim of false citizenship is conduct relevant to the instant offense and that therefore his sentence for that conduct cannot be used to support additional criminal history points under § 4A1.1(b).

Alvarado first argues that his false claim of citizenship is relevant conduct under § 1B1.3(a)(1)(A). That subsection defines relevant conduct as "all acts and omissions committed ... by the defendant ... 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." Alvarado contends that: 1) all of a § 1326 defendant's prior illegal reentries constitute relevant conduct under § 1B1.3(a)(1)(A) and are thus part of the offense of conviction; 2) his false claim of citizenship was the means by which he effected an earlier illegal reentry and therefore was conduct relevant to that earlier reentry; and 3) therefore the false claim of citizenship in 2001 was a part of his illegal reentry in 2004. The government disputes the first of these contentions, arguing that the instant offense includes only Alvarado's most recent illegal reentry and that a claim of false citizenship three years earlier cannot be construed as relevant conduct.

Alvarado's argument turns on whether his 2001 illegal reentry occurred during the offense of conviction. We therefore determine when his illegal reentry in 2001 was completed and when the instant offense began.

This court first addressed the duration of § 1326 violations in United States v. Santana-Castellano, 74 F.3d 593 (5th Cir. 1996). In that case, the defendant challenged the imposition of additional criminal history points for having committed a § 1326 violation while under a criminal justice sentence. Id. at 596; see also U.S.S.G. § 4A1.1(d). The defendant was under no such sentence when he entered the United States. Id. at 595. He was, however, found by INS officials while serving a state sentence. Id. The court began its analysis by determining "when exactly Santana committed the § 1326 offense of `being found in' the United States." Id. at 597. After considering the purpose of the statute, the court stated that "[w]here a deported alien enters the United States and remains here with the knowledge that his entry is illegal, his remaining here until he is `found' is a continuing offense because it is `an unlawful act set on foot by a single impulse and operated by an unintermittent force.'" Id. at 598 (quoting United States v. Midstate Horticultural Co., 306 U.S. 161, 166, 59 S.Ct. 412, 83 L.Ed. 563 (1939)). Moreover, "[a] continuing offense, by its very nature, does not terminate until the date of the indictment or the voluntary termination of the illegal activity." Id. (quoting United States v. Maxim, 55 F.3d 394, 397 (8th Cir.1995)). The sentence enhancement was appropriate because the court determined that Santana had committed some part of the § 1326 offense while under a state criminal sentence. Id.

This court followed Santana-Castellano in United States v. Reyes-Nava, 169 F.3d 278 (5th Cir.1999). In that case, the defendant was not under criminal sentence either when he entered the country or when he was found, but the district court enhanced his sentence pursuant to § 4A1.1(d) because he was under a sentence during some portion of his illegal stay here. Id. at 279. In affirming the enhanced sentence, the court stated that "a previously deported alien who reenters and remains in the United States, commits a continuing offense until he is found." Id. at 280 (citing Santana-Castellano, 74 F.3d at 598).

Alvarado relies on a subsequent case, United States v. Corro-Balbuena, 187 F.3d 483 (5th Cir.1999), which he claims requires us to hold that his multiple illegal reentries were a single continuing offense. In that case, the defendant had a long history of deportation and illegal reentry. Id. at 484. In 1994, he again illegally reentered the United States, this time while still on probation for driving while intoxicated. Id. at 484-85. After reentering, the defendant was charged with and convicted of auto theft and served a short sentence in state prison. Id. at 485. The defendant claimed to have then voluntarily left the United States, only to illegally reenter again the next year. Id. Pursuant to § 4A1.1(d), the district court assessed two criminal history points because the 1994 reentry was committed while the defendant was under a criminal justice sentence, i.e. probation. Id. at 484. On appeal, this court affirmed. Id.

The Corro-Balbuena court began its analysis by citing Santana-Castellano and Reyes-Nava for the propositions that § 1326 "sets forth a continuing offense" and that the "offense begins at the time the defendant illegally re-enters the country and does not become complete unless or until the defendant is found by [immigration officials] in the United States." Id. at 485. As we do in the instant case, the Corro-Balbuena court recognized that the "core dispute in [that] case concern[ed] when Corro-Balbuena's continuing § 1326 offense began." Id. at 486. Concluding that the offense began sometime before the most recent illegal reentry, the court stated:

Each or any of these multiple surreptitious and illegal reentries may be used, either as part of the instant offense or as relevant conduct, to support the district court's application of § 4A1.1(d). While it may be impossible to pinpoint the exact date on which Corro-Balbuena illegally reentered the Unites States, Corro-Balbuena's illegal reentries and his continued...