FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50096
Plaintiff-Appellee, D.C. No.
v. 2:09-cr-00991-
CRUZ HERNANDEZ-GUERRERO, CAS-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Submitted January 11, 2011*
Pasadena, California
Filed February 23, 2011
Before: M. Margaret McKeown, William A. Fletcher, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2811
UNITED STATES v. HERNANDEZ-GUERRERO 2813
COUNSEL
Kurt Mayer, Deputy Federal Public Defender, Los Angeles,
California, for the appellant.
2814 UNITED STATES v. HERNANDEZ-GUERRERO
Robert E. Dugdale and Stephanie S. Christensen, Assistant
United States Attorneys, Los Angeles, California, for the
appellee.
OPINION
CLIFTON, Circuit Judge:
Cruz Hernandez-Guerrero (“Hernandez”) pled guilty to
being an alien found in the United States following deporta-
tion in violation of 8 U.S.C. § 1326(a). He was sentenced to
twenty-seven months of imprisonment. Hernandez appeals
this sentence, contending that the district court erred in using
the date he reentered the country instead of the date he was
actually found in the country when it determined the appropri-
ate range under the now-advisory Sentencing Guidelines. In
particular, when the district court computed Hernandez’s
criminal history score, it added points under U.S.S.G.
§ 4A1.2(e)(1) based upon his 1992 controlled substance con-
viction, which the court concluded had been imposed within
fifteen years of the commencement of Hernandez’s current
offense. We agree with the district court that it is appropriate
to use the date of reentry—the date when the § 1326 offense
commenced—for purposes of calculating criminal history
points under U.S.S.G. § 4A1.2(e)(1). We also conclude that
the finding by the district court that Hernandez last reentered
the United States on June 29, 1995, was not clearly erroneous.
We thus affirm the sentence imposed upon Hernandez by the
district court.
I. Background
Hernandez was convicted in 1992 for possession for sale of
a controlled substance under California Health & Safety Code
§ 11351 and was sentenced to three years imprisonment. He
was deported on June 7, 1995. Hernandez was subsequently
UNITED STATES v. HERNANDEZ-GUERRERO 2815
found in the United States on June 29, 2009. He was charged
with being found in the United States following deportation
and pled guilty to that charge. The sentence imposed follow-
ing this conviction is the subject of this appeal.
In calculating Hernandez’s sentence, the district court
assessed three criminal history points based on Hernandez’s
1992 controlled substance conviction. The Guidelines provide
that in calculating a defendant’s criminal history score, three
points should be added for each prior sentence of imprison-
ment exceeding one year and one month, U.S.S.G.
§ 4A1.1(a), if that prior sentence was imposed “within fifteen
years of the defendant’s commencement of the instant
offense.” U.S.S.G. § 4A1.2(e)(1).
Adding these three points involved two pertinent rulings by
the district court. First, the court found that the instant illegal
reentry offense commenced on June 29, 1995, the date of
reentry. This date was derived from the Pre-sentence Report
(“PSR”), which stated that after his June 29, 2009 arrest, Her-
nandez informed Immigration and Customs Enforcement
(“ICE”) officials that “he last illegally re-entered the U.S. via
Calexico, California, on June 29, 1995.” Second, the court
held that because the instant offense commenced on June 29,
1995, the three-year sentence for Hernandez’s 1992 convic-
tion was imposed within fifteen years of the reentry offense
and warranted three criminal history points under U.S.S.G.
§ 4A1.2(e)(1).
II. Discussion
This case permits us to clarify the law in our Circuit con-
cerning the operative date of a 8 U.S.C. § 1326(a) violation
for purposes of calculating criminal history points under
U.S.S.G. § 4A1.2(e)(1). Hernandez argues that in calculating
his criminal history score, the district court should have used
the 2009 date he was actually found in the United States,
instead of the 1995 date on which he allegedly reentered the
2816 UNITED STATES v. HERNANDEZ-GUERRERO
country. He also contends that the government did not estab-
lish that June 29, 1995 was his last reentry date.
This court reviews the district court’s interpretation of the
Sentencing Guidelines de novo, United States v. Garcia-
Jimenez, 623 F.3d 936, 940 (9th Cir. 2010), and the district
court’s application of the Sentencing Guidelines to the facts
for an abuse of discretion, United States v. Cruz-Gramajo,
570 F.3d 1162, 1167 (9th Cir. 2009). Factual findings are
reviewed for clear error. Id. The district court’s evaluation of
the reliability of evidence presented at sentencing is reviewed
for an abuse of discretion. See United States v. Berry, 258
F.3d 971, 976 (9th Cir. 2001).
A. Operative Date for an Illegal Reentry Offense
[1] This Court has “repeatedly . . . held that the crime of
being ‘found in’ the United States after deportation is a con-
tinuing offense which continues so long as the alien remains
in the country. That is, the offense commences with the illegal
entry, but is not completed until discovery.” United States v.
Reyes-Pacheco, 248 F.3d 942, 946 (9th Cir. 2001) (internal
citations omitted). We have also observed that “presence at
any time subsequent to the entry is a crime subject to the pen-
alties then in effect.” United States v. Guzman-Bruno, 27 F.3d
420, 423 (9th Cir. 1994).
[2] Although we have used the “reentry” date for Sentenc-
ing Guidelines calculations in certain circumstances and have
used the “found-in” date in others, we have never held that
one date must always be used instead of the other. Two of our
cases illustrate this point.
In Reyes-Pacheco, the defendant was found by authorities
in 2000 but admitted to reentering the United States in 1996.
248 F.3d at 944. The sentencing court used the 1996 reentry
date instead of the 2000 found-in date when computing crimi-
nal history points under U.S.S.G. § 4A1.1(d) for the § 1326
UNITED STATES v. HERNANDEZ-GUERRERO 2817
violation. Id. Reyes-Pacheco received two points for commit-
ting the offense while on parole or less than two years follow-
ing release from imprisonment. Id. at 946. Reyes-Pacheco
was on parole for a prior offense in 1996 but, in 2000, was no
longer on parole or within two years of being released. On
plain error review, we affirmed. We held that “[g]iven the
continuing nature of the ‘found in’ offense, ‘part of the instant
offense’ . . . occurred on April 11, 1996,” and it was not error
to use the 1996 date. Id.; see also United States v. Marler, 527
F.3d 874, 879 n.3 (9th Cir. 2008) (discussing the continuing
nature of a § 1326 violation).
Our decision in United States v. Ramirez-Valencia, 202
F.3d 1106, 1110 (9th Cir. 2000), affirmed the district court’s
use of the found-in date instead of the reentry date in deter-
mining the defendant’s sentence, but in a different context.
Ramirez-Valencia was convicted of alien smuggling in viola-
tion of 8 U.S.C. § 1324(a)(2) in 1986 and was deported in
1988. Sometime before September 1994, the defendant ille-
gally reentered and remained in the United States. In 1996,
after he had reentered the country, Congress enacted the Ille-
gal Immigration Reform and Immigrant Responsibility Act
(“IIRIRA”), which reclassified alien smuggling as an aggra-
vated felony. Then, in 1998, the defendant was found and
pled guilty to being a deported alien found in the United
States under 8 U.S.C. § 1326. At sentencing for the § 1326
offense, the district court treated his 1986 conviction for alien
smuggling as an aggravated felony and increased the offense
level accordingly. Id. at 1108. The defendant argued that
because he reentered the country prior to September 1994,
before the IIRIRA reclassification took effect, the court
should not apply the sentencing enhancement. Id. at 1110.
Although we agreed that IIRIRA should not be applied retro-
actively, we concluded that because a § 1326 offense was a
continuing offense, the defendant violated § 1326 on the date
he was found, which was in 1998, after IIRIRA became effec-
tive. We upheld the sentencing enhancement based on the
found date, not the reentry date, and thus there was no retro-
2818 UNITED STATES v. HERNANDEZ-GUERRERO
active application of IIRIRA. Id.; see also United States v.
Mendoza-Iribe, 198 F.3d 742, 744 (9th Cir. 1999) (concluding
that because § 1326 is a continuing offense, it did not violate
the ex post facto clause to apply the IIRIRA amendments to
a defendant who had reentered the country prior to the amend-
ments but who had been found after the amendments).
[3] Reyes-Pacheco and Ramirez-Valencia, together, stand
for the principle that a defendant’s presence in this country
after an unlawful reentry may give rise to additional penalties.
See Guzman-Bruno, 27 F.3d at 423. The statute’s plain lan-
guage makes it a crime to enter or be “at any time found in”
the United States. Id.; 8 U.S.C. § 1326(a)(2). The continuous
nature of the § 1326 offense puts defendants on notice that
they are in violation each day they remain illegally in the
United States.
[4] The context of each case will determine which date
during the continuous time period is relevant for calculating
criminal history points for a § 1326 violation. For instance, in
Reyes-Pacheco, the question was whether the defendant had
committed the reentry offense while on parole. 248 F.3d at
946. Therefore, the earlier portion of his § 1326 offense that
overlapped with the parole period was the pertinent time
period. Id. In contrast, in Ramirez-Valencia, the later part of
the § 1326 offense was the relevant time period because it
occurred after IIRIRA took effect. 202 F.3d at 1110.
Our decision in United States v. Maria-Gonzalez, 268 F.3d
664 (9th Cir. 2001), is consistent with this understanding. In
that decision we summarized Ramirez-Valencia to say that
“the offense of being found in the United States occurs on the
date the defendant is apprehended.” Id. at 668. That statement
must be understood in its context. Like Ramirez-Valencia,
Maria-Gonzalez was concerned with applying IIRIRA to a
§ 1326 violation that commenced prior to IIRIRA’s enactment
but continued past IIRIRA’s effective date. We did not say
that the offense of being found in the United States occurred
UNITED STATES v. HERNANDEZ-GUERRERO 2819
only on the date of apprehension. Nor could we have, for the
offense is a continuing one. Maria-Gonzalez did not distin-
guish Reyes-Pacheco and did not purport to redefine the law
on this issue.
[5] For the purpose of calculating criminal history points
under U.S.S.G. § 4A1.2(e)(1) based on a prior conviction and
sentence, the issue raised by the case at hand, the operative
date of a § 1326 offense is the date of reentry, as we held in
Reyes-Pacheco. Under U.S.S.G. § 4A1.2(e)(1), the sentencing
court counts a prior offense and adds three points only if the
prior sentence “was imposed within fifteen years of the defen-
dant’s commencement of the instant offense.” Id. (emphasis
added). As noted above, the offense of being found in the
United States “commences with the illegal entry.” Reyes-
Pacheco, 248 F.3d at 946. The district court properly based
Hernandez’s criminal history score on his reentry date instead
of the date he was found and arrested.
B. Calculation of Criminal History Score
We next turn to whether the district court clearly erred in
making the factual finding that Hernandez last reentered on
June 29, 1995. According to the PSR, Hernandez informed
ICE officials that he last reentered the country on June 29,
1995. This statement was not challenged or controverted by
any other evidence.
[6] The district court is entitled to rely on an unchallenged
portion of a PSR. See United States v. Ameline, 409 F.3d
1073, 1085 (9th Cir. 2005) (en banc) (“[T]he district court
may rely on undisputed statements in the PSR at sentenc-
ing.”); United States v. Charlesworth, 217 F.3d 1155, 1160-
61 (9th Cir. 2000) (holding that information in a PSR was suf-
ficient because the defendant offered no evidence to contra-
dict the PSR and instead only argued that the government had
not sustained its burden of proof). In this case, not only was
2820 UNITED STATES v. HERNANDEZ-GUERRERO
the date provided by the PSR unchallenged, but the informa-
tion was provided by Hernandez himself.
[7] Contrary to Hernandez’s insistence that the government
provide “exact proof” that he was in the country continuously
after June 29, 1995, a court may find continuous presence in
the United States by a preponderance of the evidence even if
“the government’s evidence does not account for [the defen-
dant’s] presence in the United States at every moment since
[the reentry].” Garcia-Jimenez, 623 F.3d at 941-42. Here, the
PSR presented evidence establishing Hernandez’s continuous
presence in the United States in the form of employment his-
tory and dates of arrest in the United States, and established
motivation to stay in the country to remain with his family.
See id. at 941. Nothing in the record indicates Hernandez was
anywhere but in the United States during the relevant time
period. Accordingly, the court did not clearly err when it con-
cluded that the PSR, uncontradicted by any other evidence,
established by a preponderance of the evidence that Her-
nandez last reentered the United States and commenced the
instant offense on June 29, 1995.
[8] The three-year sentence imposed in 1992 was imposed
within fifteen years of the 1995 commencement of the instant
offense. Therefore, the district court’s calculation under the
Sentencing Guidelines was correct.
AFFIRMED.