U.S. v. Santana-Castellano

• Decision Date: 25 January 1996
• Docket Number: SANTANA-CASTELLAN,D,No. 95-20189,95-20189
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Zeferinoefendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 593

74 F.3d 593

UNITED STATES of America, Plaintiff-Appellee, v. Zeferino SANTANA-CASTELLANO, Defendant-Appellant.

No. 95-20189

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Jan. 25, 1996.

Paula Camille Offenhauser, Kathlyn Giannaula Snyder, U.S. Attorney's Office, Houston, TX, for plaintiff-appellee.

Roland E. Dahlin, II, Federal Public Defender, Elizabeth K. Ferrell, Office of the Federal Public Defender, Houston, TX, for defendant-appellant.

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

Before JOLLY, JONES and STEWART, Circuit Judges.

STEWART, Circuit Judge:

Santana-Castellano (Santana) pled guilty to being found unlawfully in the United States on June 7, 1994, after having been deported, in violation of 8 U.S.C. Sec. 1326. Because he had previously been convicted of committing an aggravated felony, he was sentenced to 62 months confinement and to a three-year term of supervised release, sentence to be served consecutive to the sentence he was already serving at the Texas Department of Criminal Justice for injury to a child. He appeals his sentence, arguing that the district court erred in applying sentencing guidelines Secs. 4A1.1(d) and 5G1.3(a) which added two criminal history points and imposed a consecutive sentence. For the following reasons, we AFFIRM.

FACTS

In June of 1980, Santana was convicted of importing approximately 70 pounds of marijuana into the United States, an aggravated felony as defined by the Immigration Act. 8 U.S.C. Sec. 1101(a)(43)(B). He was deported in 1987. In August of 1992, he was again deported after illegally reentering. Then, in April of the following year, he was arrested in the United States for the offense of injury to a child. He was convicted of that offense in Texas state court, and sentenced to five years confinement at TDCJ. While serving his state sentence at TDCJ, Santana was interviewed by an agent of the Immigration and Naturalization Service ("INS") who was looking for inmates who were "suspected aliens." Santana admitted that he had previously been deported. The INS agent verified The presentence report (PSR) recommended a total offense level of 21 and a criminal history category of IV, resulting in a guideline range of 52 to 71 months. The criminal history category was based on eight criminal history points, including two points under U.S.S.G. Sec. 4A1.1(d) for having committed the offense of reentering while under a state sentence of imprisonment. The PSR also recommended that Santana's federal sentence be imposed pursuant to Sec. 5G1.3(c), which dictates that a consecutive sentence be imposed to the extent necessary to achieve a reasonable incremental punishment.

that Santana had been deported after being convicted of a federal drug offense and charged him with violation of 8 U.S.C. Sec. 1326 which dictates that it is a crime for an alien who has been arrested and deported to be "at any time found in" the United States. ¹

At sentencing, Santana argued that the two-point criminal history enhancement under Sec. 4A1.1(d) was inapplicable because he was not under a state sentence when he illegally reentered the United States. ² The district court found that Sec. 4A1.1(d) applied because Santana was "found" unlawfully in the United States while he was serving a state prison sentence.

The district court also ordered that Santana's federal sentence would be consecutive to his state sentence pursuant to Sec. 5G1.3(a). U.S.S.G. Sec. 5G1.3(a) requires a consecutive sentence, while Sec. 5G1.3(c) allows the judge some discretion in determining how much of a sentence shall be consecutive. ³ Santana filed a timely notice of appeal, claiming that the two point criminal history enhancement should not have been applied because he committed the criminal reentry prior to his prosecution and sentence for injury to a child, not during his incarceration in state prison. He also argues that Sec. 5G1.3(a) is inapplicable because he was not serving a term of imprisonment when he crossed the border.

DISCUSSION

A sentence will be upheld on review unless it was "imposed in violation of law; imposed as a result of an incorrect application of the sentencing guidelines; or outside the range of the applicable sentencing guideline and is unreasonable." United States v. Garcia, 962 F.2d 479, 480-81 (5th Cir.), cert. denied, 506 U.S. 902, 113 S.Ct. 293, 121 L.Ed.2d 217 (1992). Applications of the guidelines are reviewed de novo. United States v. Bryant, 991 F.2d 171, 177 (5th Cir.1993).

In order to decide whether Sec. 5G1.3(a) and 4A1.1(d) were correctly applied, we must first consider when exactly Santana committed the Sec. 1326 offense of "being found in" the United States: when he was found in TDCJ or when he entered illegally. Santana argues that the district court erred in finding that his offense of illegal reentry was an offense which continued until he was found by INS agents.

The clear language in 8 U.S.C. Sec. 1326(a)(2) provides three separate occasions upon which a deported alien may commit the offense: 1) when he illegally enters the United States; 2) when he attempts to illegally enter the United States; or 3) when he is at any time found in the United States. United States v. Gonzales, 988 F.2d 16, 18 (5th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 170, 126 L.Ed.2d 129 (1993). This court has held that the guidelines in effect at the time the deported alien is found are the appropriate source for determining a sentence because of the "found in" language in Sec. 1326(a)(2). Gonzales, 988 F.2d at 18, accord United States v. Rodriguez, 26 F.3d 4, 8 (1st Cir.1994).

Likewise, the five year statute of limitations under Sec. 1326 begins to run at the time the alien is "found," barring circumstances that suggest that the INS should have known of his presence earlier, such as when he reentered the United States through an official border checkpoint in the good faith belief that his entry was legal. United States v. Gomez 38 F.3d 1031, 1035 (8th Cir., 1994); accord United States v. DiSantillo, 615 F.2d 128, 132 (3d Cir.1980).

The purpose of the "found in" provision is to provide punishment for an alien who, following his deportation ... and without the permission of the Attorney General ... having reentered remains illegally in this country until his presence is discovered. United States v. Whittaker, 999 F.2d 38, 41 (2d Cir.1993). This provision prohibits deported aliens, who have illegally reentered the United States, from remaining in the country. United States v. Ortiz-Villegas, 49 F.3d 1435, 1436 (9th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 134, 133 L.Ed.2d 82 (1995).

Santana argues that the district court adopted a "hyperliteral interpretation" of the "found in" language when it held that he continued to commit the crime of illegal reentry after he was arrested and imprisoned for the state offense, and that it erred in finding that his offense of illegal reentry was an offense which continued until he was found by INS agents, citing DiSantillo for the premise that a Sec. 1326 violation is not a "continuing" offense. After all, his act of entering the United States occurred at a certain point in time; it did not continue as would a convicted felon's possession of a firearm. See United States v. Maxim, 55 F.3d 394, 397 (8th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 265, 133 L.Ed.2d 188 (1995). Moreover, he certainly could not leave the United States while incarcerated in the TDCJ.

Nevertheless, Santana's argument is unavailing. "A continuing offense is a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy." United States v. Midstate Horticultural Co., 306 U.S. 161, 166, 59 S.Ct. 412, 414, 83 L.Ed. 563 (1939) (citations omitted). In line with this definition, both illegal possession of firearms and ongoing child pornography have been found to be continuing offenses. Maxim, 55 F.3d at 397.

Santana attempts to distinguish his situation, arguing that in DiSantillo, the Third Circuit applied continuing offense analysis to Sec. 1326 and held that being "found in" the United States is not a continuing offense. The facts of that case are easily distinguishable from the situation in the case at bar. DiSantillo entered the country at a United States immigration service port of entry with a visa issued by the Department of State, and was unaware that his entry was illegal. DiSantillo, 615 F.2d at 132-33. The Third Circuit used continuing offense analysis to determine whether the "found in" language was intended to toll the five year statute of limitations on Sec. 1326, and concluded that, in DiSantillo's circumstances, it did not. However, in instances where the deported alien surreptitiously enters the country, and is later discovered by the INS, the statute of limitations does not begin to run until his presence as well as the illegal status of that presence is discovered by the INS. United States v. Gomez, 38 F.3d 1031, 1036 (8th Cir.1994); DiSantillo, 615 F.2d at 132 (dicta).

Adopting the reasoning used in Gomez, we hold that a previously deported alien is "found in" the United States when his physical presence is discovered and noted by the immigration authorities, and the knowledge of the illegality of his presence, through the exercise of diligence typical of law enforcement authorities, can reasonably be attributed to the immigration authorities. Gomez, 38 F.3d at 1037.

Where 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," to use the Supreme Court's language. See Midstate Horticultural Co., 306 U.S. at 166, 59 S.Ct. at 414. That "force" is the alien's knowledge that...