NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 20, 2013*
Decided June 24, 2013
Before
RICHARD D. CUDAHY, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 12‐2303
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Western Division.
v.
No. 11 CR 50056‐1
ISRAEL GARCIA‐IBAR,
Defendant‐Appellant. Frederick J. Kapala,
Judge.
O R D E R
Israel Garcia‐Ibar, a citizen of Mexico, was removed from the United States in
2005 after incurring felony convictions for aggravated battery and aggravated driving
under the influence. He returned illegally later that year, and immigration authorities
found and arrested him in 2011. He pleaded guilty to being in the country unlawfully after
removal, 8 U.S.C. § 1326(a). The district court calculated a guidelines imprisonment range of
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
No. 12‐2303 Page 2
77 to 96 months based on a criminal history category of VI and a total offense level of 21,
see U.S.S.G. §§ 2L1.2(a), (b)(1)(A)(ii), 3E1.1, and sentenced him to 82 months.
Garcia‐Ibar, who has chosen to appeal pro se, contends that the district court
overstated his criminal history score by adding 6 points for several juvenile offenses,
see U.S.S.G. § 4A1.2(d)(2)(A), (k)(2)(B), and another 2 points for reentering the country
while on parole for his battery conviction, see id. § 4A1.1(d). He did not object to these
points at sentencing, but neither did his lawyer waive the issue when he broadly conceded
that the court’s guidelines calculations appeared to be correct. The lawyer’s statement does
not evince an intent to waive this specific challenge, so we construe the absence of an
objection as a forfeiture and review for plain error. See United States v. Allen, 529 F.3d 390,
394–95 (7th Cir. 2008); United States v. Jaimes‐Jaimes, 406 F.3d 845, 848–49 (7th Cir. 2005).
Two of the disputed juvenile offenses were committed in 1999, and the third in 2001.
Garcia‐Ibar argues that none of these offenses should have garnered criminal history points
because he was not found by immigration authorities until 2011. Crimes committed before
age 18 count for 2 points each if the defendant received a sentence of at least 60 days
confinement (including confinement imposed after revocation of parole) and commenced
the offense of conviction within 5 years of release. U.S.S.G. § 4A1.2(d)(2)(A), (k)(2)(B), &
cmt. n.8; United States v. Eubanks, 593 F.3d 645, 655 (7th Cir. 2010).
Garcia‐Ibar was released from confinement in early 2002 (he served the three
juvenile sentences concurrently), almost a decade before he was arrested in 2011 on the
§ 1326(a) charge. But in focusing on that arrest he misconstrues the applicable time period.
A violation of § 1326(a) begins at the time of reentry, United States v. Are, 498 F.3d 460, 464
(7th Cir. 2007); United States v. Lopez‐Flores, 275 F.3d 661, 663 (7th Cir. 2001), and Garcia‐Ibar
told a probation officer that he returned to the United States in September 2005, a fact noted
in the presentence report. The court adopted this finding without objection and thus
correctly found that Garcia‐Ibar’s release from confinement for the three juvenile offenses
occurred within the 5‐year period. See Are, 498 F.3d at 464; Lopez‐Flores, 275 F.3d at 663.
Garcia‐Ibar likewise asserts that the district court incorrectly added 2 criminal
history points for committing the § 1326(a) offense while on parole. He notes that his parole
for the 2005 battery conviction ended in April 2006, long before he was “found.” Because
Garcia‐Ibar reentered the United States seven months before his parole ended, the court
correctly added 2 points. See U.S.S.G. § 4A1.1(d); United States v. Garcia‐Vasquez, 379 F.3d
451, 453 (7th Cir. 2004); Lopez‐Flores, 275 F.3d at 663. Thus the sentencing judge committed
no error—plain or otherwise—in calculating Garcia‐Ibar’s criminal history score.
AFFIRMED.