UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20514
UNITED STATE OF AMERICA,
Plaintiff-Appellee,
VERSUS
ATENOGENES CORRO-BALBUENA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
August 25, 1999
Before WIENER, DeMOSS, and PARKER, Circuit Judges.
DeMOSS, Circuit Judge:
Corro-Balbuena appeals the sentence imposed following his
guilty plea to being found present in the United States without
permission after deportation, in violation of 8 U.S.C. § 1326(a).
Corro-Balbuena pleaded guilty and was sentenced, on his own motion
and over the government’s objection, without a presentence report
or formal recommendation from the probation officer. The district
court assigned a total of seven criminal history points; five
points were assigned for prior convictions, see U.S.S.G.
§ 4A1.1(a)-(c), and two points were assigned because Corro-Balbuena
committed the instant § 1326 offense while under a criminal justice
sentence, see U.S.S.G. § 4A1.1(d). The district court overruled
Corro-Balbuena’s objection to the number of criminal history points
assigned. On appeal, Corro-Balbuena challenges only those two
criminal history points assigned on the basis of § 4A1.1(d).
Having reviewed the district court’s interpretation of the
sentencing guidelines de novo and its application of the guidelines
to the facts for clear error, see United States v. Cho, 136 F.3d
982, 983 (5th Cir. 1998), we affirm.
BACKGROUND
On October 9, 1991, Corro-Balbuena was convicted in Texas
state court on a misdemeanor charge of carrying a weapon, and
sentenced to ten days confinement in the Harris County, Texas jail.
On October 21, 1991, Corro-Balbuena was deported to Mexico through
Brownsville, Texas.
On February 19, 1994, Corro-Balbuena was apprehended in
Houston, Texas by immigration service officers assigned to a
violent gang task force. On March 2, 1994, Corro-Balbuena was
deported to Mexico through Brownsville, Texas.
On March 19, 1994, Corro-Balbuena was once again apprehended
in Houston, Texas by immigration service officers assigned to a
violent gang task force. On March 30, 1994, Corro-Balbuena was
deported to Mexico through Brownsville, Texas.
Sometime between March 1994 and July 1994 Corro-Balbuena,
having been previously deported, reentered the United States
without obtaining permission to do so from the Attorney General of
the United States. On July 11, 1994, Corro-Balbuena was convicted
in Texas state court for failure to identify himself to a police
officer and driving while intoxicated. Corro-Balbuena was
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sentenced to ten days confinement on the failure to identify
charge. Corro-Balbuena was sentenced to 180 days confinement on
the DWI charge, but that sentence was probated to one year
probation. On September 15, 1994, while still under a sentence of
probation, Corro-Balbuena was deported to Mexico through
Brownsville, Texas.
Sometime between September 1994 and March 1995, while he was
still under a sentence of probation, Corro-Balbuena once again
illegally reentered the United States without obtaining permission
from the Attorney General. On February 24, 1995, the state filed
a motion to revoke Corro-Balbuena’s probation. On March 10, 1995,
Corro-Balbuena was arrested in Texas for auto theft. On April 27,
1995, Corro-Balbuena was convicted in Texas state court of auto
theft and was sentenced to 140 days confinement.
Corro-Balbuena maintains that he voluntarily returned to
Mexico after completing the 140 day sentence, and that he then
remained in Mexico until November 1997, when he illegally reentered
the United States without permission for at least the fifth time.
As of January 29, 1998, Corro-Balbuena was being held in the
Harris, County, Texas jail on an unresolved charge that he was
driving with a suspended license. That same day, Corro-Balbuena’s
illegal presence in the United States was discovered by the
Immigration and Naturalization Service (INS). On January 30, 1998,
Corro-Balbuena was found guilty on the charge that he was driving
with a suspended license and was sentenced to 45 days confinement
and a $100 fine.
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In March 1998, the government filed its complaint against
Corro-Balbuena for violation of 8 U.S.C. § 1326. Corro-Balbuena
pleaded guilty to the charge and judgment was entered on June 15,
1998. This appeal ensued.
ANALYSIS
Title 8 U.S.C. § 1326(a) provides, in relevant part, that any
alien who:
(1) has been denied admission, excluded, deported,
or removed or has departed the United States while
an order of exclusion, deportation, or removal is
outstanding, and thereafter
(2) enters, attempts to enter, or is at any time
found in, the United States, unless (A) prior to
his reembarkation at a place outside the United
States or his application for admission from
foreign contiguous territory, the Attorney General
has expressly consented to such alien’s reapplying
for admission; or (B) with respect to an alien
previously denied admission and removed, unless
such alien shall establish that he was not required
to obtain such advance consent under this chapter
or any prior Act,
shall be fined or imprisoned or both as set forth in the statutory
sections that follow.
Sentencing guideline § 4A1.1(d) provides that two points
should be added to a defendant’s criminal history score “if the
defendant committed the instant offense while under any criminal
justice sentence, including probation, parole, supervised release,
imprisonment, work release, or escape status.” Application note 4
to that guideline provides that “[t]wo points are added if the
defendant committed any part of the instant offense (i.e. any
relevant conduct) while under any criminal justice sentence,
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including probation, parole, supervised release, imprisonment, work
release, or escape status.” U.S.S.G. § 4A1.1(d) comment. (n.4).
Section 1326 sets forth a continuing offense. United States
v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir. 1996). That
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 the INS in the United States. United States v. Reyes-
Nava, 169 F.3d 278, 280 (5th Cir. 1999); Santana-Castellano, 74
F.3d at 598. A two point enhancement under § 4A1.1(d) may,
therefore, be applied to increase a § 1326 defendant’s criminal
history score when the district court finds, as it did in this
case, that the defendant was under a criminal justice sentence at
any time during the pendency of the continuing § 1326 offense.1
The core dispute in this case concerns when Corro-Balbuena’s
continuing § 1326 offense began. The district court held that any
of the dates on which Corro-Balbuena surreptitiously and illegally
reentered the United States after deportation and without
permission could be used as the start date of Corro-Balbuena’s
offense, which continued until Corro-Balbuena was found by the INS
in January 1998. Corro-Balbuena maintains that his § 1326 offense
may only be defined with reference to his most recent illegal
1
This Court has expressly rejected the contention that
§ 4A1.1(d) cannot be applied in the context of a § 1326 offense
unless the defendant was under a criminal justice sentence when he
or she illegally reentered the country. See Santana-Castellano, 74
F.3d at 598. The Court has likewise rejected the contention that
the § 1326 defendant must be under a criminal justice sentence when
he is “found,” or discovered in the United States. See Reyes-Nava,
169 F.3d at 280.
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reentry, which he alleges did not occur until November 1997.
Corro-Balbuena maintains that the district court was not free to
consider, either as part of the instant offense or as relevant
conduct, the four prior unlawful reentries when imposing his
sentence.
We disagree. Corro-Balbuena illegally reentered the country
sometime after he was deported in 1991 and before he was
apprehended by INS officers in 1994. Corro-Balbuena illegally
reentered the country again in early 1994, and again in mid-1994.
In July 1994, Corro-Balbuena was convicted and placed under a
criminal justice sentence which included a one year probationary
period. Less than one year later, and while he was still under a
criminal justice sentence, Corro-Balbuena illegally entered the
country again. Shortly thereafter, Corro-Balbuena was convicted of
auto theft and placed under another criminal justice sentence
requiring that he serve 140 days in confinement. None of these
facts are disputed. 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
United States, Corro-Balbuena’s illegal reentries and his continued
unlawful presence in the United States are adequately illustrated
by his multiple criminal convictions in Texas state court. Corro-
Balbuena’s naked assertions that he voluntarily departed the United
States in 1995 and did not return until shortly before he was found
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by the INS in January 1998 may be sufficient to create a new and
independent offense. That conduct is insufficient, however, even
if true, to extinguish a pre-existing and continuing offense
arising from prior illegal reentries.
CONCLUSION
We find adequate authority in Santana and Reyes for the
district court’s application of § 4A1.1(d) in this case. We
likewise find ample support in the record for the district court’s
factual determination that Corro-Balbuena was under a criminal
justice sentence while his § 1326 offense was continuing.
The district court is in all respects AFFIRMED.
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