PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-4109
JOSE GONZALO SOSA-CARABANTES,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Frank D. Whitney, District Judge.
(3:07-cr-00198-FDW-1)
Argued: January 30, 2009
Decided: April 1, 2009
Before SHEDD and AGEE, Circuit Judges, and Arthur L.
ALARCÓN, Senior Circuit Judge of the United States
Court of Appeals for the Ninth Circuit, sitting by
designation.
Vacated and remanded by published opinion. Senior Judge
Alarcón wrote the opinion, in which Judge Shedd and Judge
Agee concurred.
COUNSEL
ARGUED: Matthew Segal, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Asheville, North
2 UNITED STATES v. SOSA-CARABANTES
Carolina, for Appellant. Adam Christopher Morris, OFFICE
OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee. ON BRIEF: Claire J. Rauscher, Exec-
utive Director, Steven Slawinski, FEDERAL DEFENDERS
OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Charlotte, North Carolina, for Appellee.
OPINION
ALARCÓN, Senior Circuit Judge:
Appellant, Jose Sosa-Carabantes ("Sosa") appeals from the
district court’s imposition of a two-point enhancement pursu-
ant to United States Sentencing Guidelines § 4A1.1(e)
("U.S.S.G. § 4A1.1(e)") relating to the sentence imposed for
his conviction under 8 U.S.C. § 1326. Sosa contends that at
the time Immigration and Customs Enforcement ("ICE")
found him, for purposes of § 1326, he had not yet been sen-
tenced and the two-point enhancement should not have been
applied. We hold that when an Immigration Detainer-Notice
of Action, Form I-247 ("Immigration Detainer"), is issued by
a local law enforcement officer who is a participant in the
cross-designation program, under 8 U.S.C. § 1357(g), ICE has
actual knowledge that the immigrant is in the United States
and, thus, has "found" the immigrant for purposes of 8 U.S.C.
§ 1326. In this case, ICE found Sosa prior to his state court
conviction or sentence and, consequently, the two-point
enhancement was improperly applied. We remand for resen-
tencing in accordance with the views expressed in this opin-
ion.
I
Appellant Sosa is a citizen of El Salvador. The United
States deported Sosa on May 15, 2003. Some time after that,
UNITED STATES v. SOSA-CARABANTES 3
Sosa illegally reentered the United States. On March 3, 2007,
Sosa was arrested in Mecklenburg County, North Carolina for
assaulting a child under twelve. He was transported to the
Mecklenburg County Jail.
ICE and the Mecklenburg County Sheriff’s Office work
together pursuant to § 287(g) of the Immigration and Nation-
ality Act ("the 287(g) Program"). Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, Pub. L. 104-208,
110 Stat. 3009-546 (1996), codified at 8 U.S.C. § 1357(g)
(2000).1 The 287(g) Program permits ICE to deputize local
law enforcement officers to perform immigration enforcement
activities pursuant to a written agreement. 8 U.S.C.
§ 1357(g)(1). ICE trains the local law enforcement officers
who participate in the 287(g) Program. 8 U.S.C. § 1357(g)(2).
These officers are subject to the supervision of the U.S. Attor-
1
Section 1357(g)(1)-(2) (2000) reads as follows:
g) Performance of immigration officer functions by State officers
and employees.
(1) [T]he Attorney General may enter into a written agreement
with . . . any political subdivision of a State, pursuant to which
an officer . . . who is determined by the Attorney General to be
qualified to perform a function of an immigration officer in rela-
tion to the investigation, apprehension, or detention of aliens in
the United States (including the transportation of such aliens
across State lines to detention centers), may carry out such func-
tion at the expense of the State or political subdivision and to the
extent consistent with State and local law.
(2) An agreement under this subsection shall require that an
officer or employee of a State or political subdivision of a State
performing a function under the agreement shall have knowledge
of, and adhere to, Federal law relating to the function, and shall
contain a written certification that the officers or employees per-
forming the function under the agreement have received adequate
training regarding the enforcement of relevant Federal immigra-
tion laws.
4 UNITED STATES v. SOSA-CARABANTES
ney General for their activities under the act. 8 U.S.C.
§ 1357(g)(3).2
On February 27, 2006, ICE and the Mecklenburg County
Sheriff’s Office entered into an agreement pursuant to the
287(g) Program. Twelve deputies in the Mecklenburg County
Sheriff’s Office were certified under the 287(g) Program.
These deputies were authorized to screen individuals arrested
in Mecklenburg County for immigration violations. As part of
the 287(g) Program, the Mecklenburg County Sheriff’s Office
had access to ICE’s databases of fingerprints and photographs
to determine an arrestee’s immigration status.
After Sosa was arrested on March 3, 2007, the ICE office
in Charlotte, North Carolina sent an Immigration Detainer to
the Mecklenburg County Jail. Carl Smith, who identified him-
self as "Deputy Sheriff 287g," signed the Immigration
Detainer. The Immigration Detainer stated that ICE had initi-
ated an investigation to determine whether Sosa was subject
to removal, and directed the Mecklenburg County Jail to hold
Sosa for 48 hours to provide ICE adequate time to assume
custody of Sosa. The Immigration Detainer contained Sosa’s
full name, birth date, nationality, and "A-file" number.3
2
Section 1357(g)(3) reads as follows:
In performing a function under this subsection, an officer or
employee of a State or political subdivision of a State shall be
subject to the direction and supervision of the Attorney General.
3
An A-file number or alien file number is "by definition, a means of
identification of an actual individual because ‘they are assigned to a single
person and, once used, are not reassigned to anyone else.’" United States
v. Crounsset, 403 F. Supp. 2d 475, 482 (E.D. Va. 2005) (quoting United
States v. Montejo, 353 F. Supp. 2d 643, 649 (E.D. Va. 2005)). "An INS
A-File identifies an individual by name, aliases, date of birth, and citizen-
ship, and all records and documents related to the alien are maintained in
that file." United States v. Blanco-Gallegos, 188 F.3d 1072, 1075 n.2 (9th
Cir. 1999) (quotations omitted).
UNITED STATES v. SOSA-CARABANTES 5
On May 15, 2007, Sosa was convicted in state court of
assaulting a minor under the age of twelve. He was sentenced
to serve 150 days of imprisonment. Sosa was released on July
30, 2007 and transferred directly to ICE’s custody. In the
Record of Deportable/Inadmissible Alien, Form I-213, com-
pleted on July 30, 2007, Mark Smith, who identified himself
as "Deputy Sheriff - ICE 287(g)," wrote: "On 03/03/2007
[Sosa] was arrested . . . transported to the Mecklenburg
County Jail in Charlotte, NC where being encountered by
Sheriff’s Deputies pursuant to the 287(g) program. Subject
was determined to be in the United States in violation of the
Immigration and Nationality Act."
ICE Special Agent Darren Vazquetelles received Sosa’s
immigration file on August 3, 2007. He concluded that there
was probable cause to believe Sosa reentered the United
States illegally. He filed a complaint on August 8, 2007,
which alleges that Sosa illegally reentered the United States
in violation of 8 U.S.C. § 1326(a) and (b)(2). Special Agent
Vazquetelles’s affidavit in support of the complaint states that
the Mecklenburg County Sheriff’s Office provided informa-
tion to ICE on August 3, 2007 that indicated Sosa was a posi-
tive match of a previously deported felon.
Sosa was indicted on August 29, 2007. The indictment
alleged that Sosa unlawfully reentered, or was found in, the
United States on or about August 3, 2007 in Mecklenburg
County, North Carolina. On September 7, 2007, Sosa pled
guilty to violating 8 U.S.C. § 1326(a) and (b)(2).
The district court held a sentencing hearing on September
11, 2007. Over Sosa’s objection, the district court included a
two-point enhancement, pursuant to U.S.S.G. § 4A1.1(e),4 and
4
U.S.S.G. § 4A1.1(e) reads:
Add 2 points if the defendant committed the instant offense less
than two years after release from imprisonment on a sentence
counted under (a) or (b) or while in imprisonment or escape sta-
tus on such a sentence. If 2 points are added for item (d), add
only 1 point for this item.
6 UNITED STATES v. SOSA-CARABANTES
sentenced Sosa to 46 months’ imprisonment, the low end of
the Guidelines range, Offense Level 17, Criminal History Cat-
egory V.5 Sosa filed a timely appeal from the district court’s
judgment.
A
In his appeal, Sosa contends that the district court erred in
applying the enhancement under U.S.S.G. § 4A1.1(e) because
ICE, through the 287(g) Program, knew of his illegal status on
the day he was arrested. "In assessing a challenge to a sen-
tencing court’s application of the Guidelines, we review the
court’s factual findings for clear error and its legal conclu-
sions de novo." United States v. Allen, 446 F.3d 522, 527 (4th
Cir. 2006) (citing United States v. Ebersole, 411 F.3d 517,
535-36 (4th Cir. 2005)).6
B
Pursuant to U.S.S.G. § 4A1.1(e), the district court applied
a two-point enhancement to Sosa’s sentence for illegally reen-
tering the United States, a violation of 8 U.S.C. § 1326. Sec-
tion 1326 reads, in pertinent part, as follows:
Any alien who (1) has been . . . deported, or
removed or has departed the United States while an
order of exclusion, deportation, or removal is out-
standing and thereafter (2) enters, attempts to enter,
or is at any time found in, the United States . . . shall
5
The transcript of the court’s sentencing proceeding indicates that Sosa
was sentenced pursuant to an Offense Level 17, Criminal History Cate-
gory III. The parties concede this is a typographical error and Sosa was,
in fact, sentenced pursuant to Offense Level 17, Criminal History Cate-
gory V.
6
The Government argues a plain error standard of review should apply
because the issue of sentencing was not preserved. However, the transcript
of the sentencing hearing shows that Sosa raised the issue of when he was
"found" and argued that the two point enhancement should not be applied.
UNITED STATES v. SOSA-CARABANTES 7
be fined under Title 18, or imprisoned not more than
2 years, or both.
8 U.S.C. § 1326(a)(1)-(2) (emphasis added). The Government
charged Sosa with being found in the United States after
being deported or removed.
U.S.S.G. § 4A1.1(e) provides as follows:
Add 2 points if the defendant committed the instant
offense7 less than two years after release from
imprisonment on a sentence counted under (a) or (b)8
or while in imprisonment or escape status on such a
sentence. If 2 points are added for item (d), add only
1 point for this item.
(Emphasis added.) Thus, whether or not U.S.S.G. § 4A1.1(e)
was properly applied depends on when ICE found Sosa. The
two possible dates are March 3, 2007, when a participant in
the 287(g) Program signed a receipt of the Immigration
Detainer, or August 3, 2007 when Special Agent Vazquetelles
received Sosa’s immigration file. The date Sosa was found in
the United States is dispositive because if he was found on
March 3, 2007, the U.S.S.G. § 4A1.1(e) enhancement would
not apply, as he had not yet been sentenced for any crime.
The day Sosa was arrested, March 3, 2007, ICE served an
Immigration Detainer on the Mecklenburg County Jail. The
7
The instant offense is Sosa’s violation of section 1326.
8
Section 4A1.1(a)-(b) reads as follows:
(a) Add 3 points for each prior sentence of imprisonment exceed-
ing one year and one month.
(b) Add 2 points for each prior sentence of imprisonment of at
least sixty days not counted in (a).
U.S.S.G. § 4A1.1(b) is the relevant section here because the prior sen-
tence related to Sosa’s March 3, 2007 arrest and May 15, 2007 conviction
which resulted in a sentence of 150 days of imprisonment.
8 UNITED STATES v. SOSA-CARABANTES
Immigration Detainer identified Sosa by name, birth date,
place of birth, and A-file number. Moreover, a local officer,
who was certified to perform immigration enforcement duties
pursuant to the 287(g) Program, signed the Immigration
Detainer. Accordingly, ICE possessed the information neces-
sary to determine Sosa’s immigration status on March 3, 2007
because the acts of such a 287(g) Program officer are the acts
of ICE. The information provided to the Mecklenburg County
Sheriff’s Office was sufficient to identify Sosa as an illegal
alien. Because the Sheriff’s Office participates in the 287(g)
Program, ICE had notice of Sosa’s illegal status on March 3,
2007.
The Government asks this court to disregard the informa-
tion in the Immigration Detainer because it was issued prior
to a complete investigation. It argues:
On its face, [an Immigration Detainer] suggests that
the investigation will be completed in a timely fash-
ion, but holding the detainee for 48 hours is the
minimum required of the custodial entity. What the
detainer does not say is that the investigation will be
completed within that time period . . . . Sosa points
to no case or regulation or contract that indicates that
the investigation must occur within a certain time.
Appellee’s Br. 6 (citations omitted, emphasis in original).
This argument completely ignores the fact that an officer par-
ticipating in the 287(g) Program was aware that Sosa was in
the country illegally on March 3, 2007 because of the infor-
mation set forth in the Immigration Detainer.
The Government also asserts that there is no evidence in
the record that ICE actually investigated or became aware of
Sosa until the end of his sentence. This argument is also con-
trary to the evidence in the record that an ICE agent was
aware, on March 3, 2007, that Sosa had illegally reentered the
United States.
UNITED STATES v. SOSA-CARABANTES 9
In summary, the record shows that an ICE agent had
knowledge on March 3, 2007 that Sosa had reentered the
United States illegally and was subject to prosecution pursu-
ant to § 1326.
Accordingly, Sosa was found on March 3, 2007 for pur-
poses of § 1326 and the enhancement under U.S.S.G.
§ 4A1.1(e) did not apply. Applying U.S.S.G. § 4A1.1(e), the
trial court was authorized to add two points if Sosa committed
a § 1326 offense, i.e. being found in the United States, less
than two years after he was released on the state sentence for
assaulting a child under twelve, or while he was imprisoned
on the state sentence for assaulting a child under twelve. But
Sosa committed the § 1326 offense before he was sentenced
on the state charge — not after being sentenced nor while
imprisoned on the state sentence. Because Sosa was not sen-
tenced until May 15, 2007, the sentence enhancement under
U.S.S.G. § 4A1.1(e) did not apply as Sosa was not "found in"
the United States within two years after release on any sen-
tence or while imprisoned on any sentence.9
Deducting the two-point enhancement will cause Sosa to
fall into Offense Level 17, Criminal History Category IV with
the Guideline range of 37 to 46 months’ imprisonment. He
was originally sentenced to 46 months under an Offense
Level 17, Criminal History Category V, with the Guideline
range being 46 to 57 months. The Government asserted at oral
argument that we are precluded from remanding for resen-
tencing, under United States v. Evans, 416 F.3d 298 (4th Cir.
2005), because Sosa was sentenced to a term that falls within
the Guidelines range he seeks in this appeal. Evans is not dis-
positive as it was reviewed on a plain error standard address-
ing a Sixth Amendment challenge to a sentence. Id. at 300.
9
Sosa also argued that the Government’s failure to disclose the Immi-
gration Detainer constituted a violation of Brady v. Maryland, 373 U.S. 83
(1963). Our holding moots this argument because the failure to disclose
this document no longer causes any prejudice to Sosa.
10 UNITED STATES v. SOSA-CARABANTES
Moreover, in Gall v. United States, 128 S. Ct. 586 (2007), the
Supreme Court explained that in exercising its discretion in
imposing a sentence, a district court must begin by correctly
calculating the appropriate Guidelines range. Id. at 596; see
United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007)
(stating "In Gall, the Court instructed that the sentencing
court should first calculate the applicable Guidelines range.
This starting point furthers Congress’ desire for efficient
administration and nationwide consistency in sentencing.")
(citations omitted). Accordingly, this matter must be
remanded for resentencing.
CONCLUSION
Applying the rules set forth above, the district court erred
by computing Sosa’s Criminal History Category as a Level V
instead of a Level IV because of its error in determining when
Sosa was found in the United States. We vacate the district
court’s sentence and remand for resentencing.
VACATED AND REMANDED