United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS
F I L E D
December 21, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-10474
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ARTURO VARGAS-GARCIA
Defendant - Appellant
Appeal from the United States District Court for the
Northern District of Texas, Dallas Division
Before KING, Chief Judge, and BARKSDALE and PRADO, Circuit
Judges.
KING, Chief Judge:
Arturo Vargas-Garcia, the defendant-appellant in this
matter, appeals from the sentence imposed by the district court.
We AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
On October 12, 2004, Arturo Vargas-Garcia was arrested in
Dallas by special agents from the Bureau of Immigration and
Customs Enforcement. Vargas-Garcia, a citizen of Mexico, had
been indicted on October 5, 2004, and charged with one count of
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illegal reentry after removal from the United States,1 in
violation of, inter alia, 8 U.S.C. § 1326. Specifically, Vargas-
Garcia was charged with being “found in the United States”
without having received the express consent of the Attorney
General to reenter. Vargas-Garcia made an immediate appearance
on October 12, and he pleaded guilty to the illegal reentry
charge on December 16, 2004.
Several weeks earlier, on September 12, 2004, Dallas police
arrested Vargas-Garcia after he committed a traffic violation. A
Dallas police officer initially stopped Vargas-Garcia for failing
to yield the right of way to oncoming traffic, then determined
that Vargas-Garcia lacked both a driver’s license and proof of
insurance. As the police officer attempted to place him in
handcuffs, Vargas-Garcia struck the officer, stated that he could
not go to jail as he had returned to the United States after
being removed, then fled. After a brief chase, Vargas-Garcia was
apprehended in the closet of a nightclub, and he eventually
pleaded guilty to state law charges of resisting arrest, evading
arrest, and failure to identify.
This offense, along with numerous others, was included in
the presentence report (PSR) prepared in advance of Vargas-
Garcia’s sentencing hearing for his illegal reentry offense. On
1
Vargas-Garcia had been removed on September 14, 2001,
after being apprehended for unlawfully entering the United
States.
2
March 31, 2005, the district judge sentenced Vargas-Garcia to
custody “for a term of 27 months on an offense level of 11 . . .
and a criminal history category of six. In doing so, I consider
the Guidelines as advisory and I have taken into consideration
the provisions of 18 U.S.C. § 3553(a).”2
In this appeal, Vargas-Garcia argues that his criminal
history score was erroneously calculated because he was assigned
two points for his resisting arrest offense. Vargas-Garcia
claims that the resisting arrest offense was not a separate
offense, but rather that it was relevant conduct of the instant
offense of illegal reentry, since his resisting arrest occurred
during the commission of or in the course of attempting to avoid
detection or responsibility for his illegal reentry. Cf. U.S.
SENTENCING GUIDELINES MANUAL §§ 1B1.3, 4A1.1, 4A1.2 (2004).
Had the district court excluded the resisting arrest offense
from his criminal history computation, Vargas-Garcia argues that
he would have received an initial offense level of 12 rather than
14, which would have placed him in a criminal history category of
five rather than six. Vargas-Garcia acknowledges that the court
2
The total criminal history score recommended by the PSR
was 14. PSR ¶ 32. Therefore, the offense level of 11 used by
the district court represented a downward departure (based on
cultural assimilation) from the initial level based on the PSR
alone.
The district court also sentenced Vargas-Garcia to two years
of supervised release after his term of incarceration ends. As a
condition of his supervised release, Vargas-Garcia will be
immediately surrendered to the relevant immigration officials for
removal proceedings.
3
sentenced him below the Guidelines range, but he argues that it
took his (incorrectly determined) criminal history category into
consideration when it decided the extent of the departure.
Therefore, he argues that it is “reasonably probable” that his
sentence would have been lower absent the error.
II. STANDARD OF REVIEW
Vargas-Garcia concedes that he failed to raise this issue
before the district court. Because he did not make this
objection in the district court, this court will review for plain
error. United States v. Mora, 994 F.2d 1129, 1142 (5th Cir.
1993); see also United States v. Henry, 288 F.3d 657, 665 (5th
Cir. 2002) (stating that when “a defendant fails to object
properly at sentencing, he waives his right to full appellate
review, and this Court reviews only for plain error”). To
demonstrate plain error, an appellant must show clear or obvious
error that affects his substantial rights; if he does, this court
may correct a forfeited error that seriously affects the
fairness, integrity, or public reputation of judicial
proceedings. United States v. Lewis, 412 F.3d 614, 616 (5th Cir.
2005); see also United States v. Krout, 66 F.3d 1420, 1434 (5th
Cir. 1995) (stating that “to show plain error, the appellant must
show that there was an error, that it was plain (meaning ‘clear’
or ‘obvious’) and that the error affects substantial rights”).
In resolving Vargas-Garcia’s claim that the district court
misapplied the Sentencing Guidelines, we review the district
4
court’s interpretation and application of the Guidelines de novo.
See United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005);
see also United States v. Garza-Lopez, 410 F.3d 268, 273 (5th
Cir. 2005).
III. DISCUSSION
A. Vargas-Garcia’s Presentence Report
In this appeal, Vargas-Garcia argues that his resisting
arrest offense was not a separate offense, but rather was
relevant conduct of the illegal reentry, since his resisting
arrest occurred during the commission of or in the course of
attempting to avoid detection or responsibility for his illegal
entry. In his own words, “Mr. Lopez-Vargas’ [sic] ‘resisting
arrest’ offense is plainly ‘part of the instant offense’ within
the meaning of USSG § 4A1.2(a)(1), and the district court
therefore erred in counting it as part of his criminal history
score.”
Vargas-Garcia’s argument revolves around Section 4A1.1 of
the Sentencing Guidelines, which addresses the manner in which a
defendant’s criminal history is determined. One to three points
are awarded to a defendant’s criminal history for each “prior
sentence” he has received within certain specified time frames.
U.S. SENTENCING GUIDELINES MANUAL § 4A1.1(a)-(c) & cmt. nn. 1-6
[hereinafter U.S.S.G.]. A “prior sentence” is defined as “any
sentence previously imposed upon adjudication of guilt . . . for
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conduct not part of the instant offense.” U.S.S.G.
§ 4A1.2(a)(1). The term “prior sentence” is broadly defined as
“a sentence imposed prior to sentencing on the instant offense,
other than a sentence for conduct that is part of the instant
offense.” U.S.S.G. § 4A1.2 cmt. n.1. On the other hand,
“[c]onduct that is part of the instant offense means conduct that
is relevant conduct to the instant offense under the provisions
of § 1B1.3 (Relevant Conduct).” Id. Therefore, unlike a prior
offense resulting in a prior sentence, relevant conduct that is
part of the instant offense does not create additional criminal
history points. Relevant conduct is defined in the Guidelines as
“all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the
defendant . . . that occurred during the commission of the
offense of conviction, in preparation for that offense, or in the
course of attempting to avoid detection or responsibility for
that offense . . . .” U.S.S.G. § 1B1.3(a)(1).
Vargas-Garcia acknowledges that the district court sentenced
him below his initially determined Guidelines range, but he
argues that the court, treating his resisting arrest offense as a
prior offense, rather than as relevant conduct, took his
(incorrectly determined) criminal history category of six into
consideration when it decided the extent of the departure.
Therefore, even though the final offense level of 11 used by the
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district court is lower than the offense level of 12 argued for
in this appeal, Vargas-Garcia believes that it is “reasonably
probable” that his amended offense score and his ultimate
sentence would have been even lower if the district court had
begun its calculations with his figures.
The government, which also could have brought this matter to
the attention of the district court, now concedes that the
district court erred in counting Vargas-Garcia’s resisting arrest
offense separately from his illegal reentry. Instead, the
government argues that the district court’s sentence should be
affirmed because it was reasonable, because Vargas-Garcia has not
shown that the error seriously affected the fairness, integrity,
or public reputation of the sentencing hearing, and because
Vargas-Garcia has not shown that correcting the error would
result in a lower sentence. In other words, the government would
have us pass over the precise impact of the Guidelines upon
Vargas-Garcia’s sentence and instead address the general question
of the overall reasonableness vel non of the district court’s
sentence, taken as a whole, on a plain error standard.
As an initial matter, we observe that we are not bound by
the government’s concessions. See, e.g., United States v.
Claiborne, 132 F.3d 253, 254-55 (5th Cir. 1998) (per curiam)
(holding that “the district court did not misapply the
[Sentencing] Guidelines” despite the government’s contrary
7
concession). We do not accept the government’s suggested
blueprint for this case because, even in the wake of United
States v. Booker, --- U.S. ----, 125 S. Ct. 738 (2005), our
review of a sentence imposed by a lower court must begin with the
Sentencing Guidelines and the calculation of the Guidelines by
the lower court, especially where the lower court has imposed
what it considered to be a Guidelines sentence (with a downward
departure). See generally United States v. Mares, 402 F.3d 511
(5th Cir. 2005). In Mares, our “first sentencing decision since
the Supreme Court issued Booker/Fanfan,” we recognized that
“[t]he Remedy Opinion in Booker makes it unmistakably clear . . .
that the [Sentencing Reform Act], with the exception of the
excised provisions, remains intact.” Mares, 402 F.3d at 517,
518. Therefore, even under “the discretionary sentencing system
established by Booker/Fanfan, a sentencing court must still
carefully consider the detailed statutory scheme created by the
[Sentencing Reform Act] and the Guidelines,” and these factors
must continue to “‘guide appellate courts, as they have in the
past, in determining whether a sentence is unreasonable.’” Id.
at 518 (quoting Booker, 125 S. Ct. at 766). Accordingly, we must
first consider the district court’s calculation of the Guidelines
before turning to the broader reasonableness issues urged upon us
by the government. As explained above, in making this
determination, we review the district court’s interpretation and
application of the Guidelines de novo. Villegas, 404 F.3d at
8
359.
We hold that the district court’s decision to count Vargas-
Garcia’s resisting arrest offense, which, after all, occurred
pursuant to a traffic violation, as an offense separate from his
illegal reentry offense for sentencing purposes was not plainly
erroneous, if, indeed, it was error at all. To hold otherwise,
and to adopt Vargas-Garcia’s conclusions, would impose an
unfounded and bizarre gloss upon illegal reentry law.
The illegal reentry statute defines Vargas-Garcia’s offense
thusly: a removed alien commits illegal reentry when he “enters,
attempts to enter, or is at any time found in, the United States
. . . .” 8 U.S.C. § 1326(a)(2). Ordinarily, illegal reentry is
“uncomplicated and is complete as soon as the entry or attempt is
made.” United States v. Rivera-Ventura, 72 F.3d 277, 281 (2d
Cir. 1995) (citing H.R. Rep. No. 1365, 82d Cong. 2d Sess. (1952),
as reprinted in 1952 U.S.C.C.A.N. 1653, 1683 (stating that
“[n]ormally an entry occurs when the alien crosses the border of
the United States and makes a physical entry, and the question of
whether an entry has been made is susceptible of a precise
determination”)). When a removed alien is indicted for illegal
reentry under the third prong of the statute, after being “found
in” the United States, as was Vargas-Garcia, the offense “is
somewhat more complex, since it depends not only on the conduct
of the alien but also on acts and knowledge of the federal
authorities.” Rivera-Ventura, 72 F.3d at 281. Because “the
9
alien may be in the United States unlawfully after making a
surreptitious border crossing that conceals his presence . . .
the offense of being ‘found in’ the United States in violation of
§ 1326(a) is not complete until the authorities both discover the
illegal alien in the United States and know, or with the exercise
of diligence typical of law enforcement authorities could have
discovered, the illegality of his presence.” Id. at 281-82
(internal citations omitted). Therefore, “[t]o the extent that
§ 1326(a) makes it a crime to be ‘found in’ the United States,
that provision is the practical equivalent of making unlawful
‘entry’ a continuing offense until at least such time as the
alien is located.” Id. at 282. But this complexity, and the
continuing nature of the offense, do not require us to adopt
Vargas-Garcia’s conclusions in this appeal.
Although illegal reentry after a surreptitious or
unannounced border crossing may be a continuing offense until an
alien is found by the relevant authorities, the concealed and
extended nature of this offense cannot shield multiple and
“severable instances of unlawful conduct” from their appropriate
consequences at sentencing. Cf. United States v. Banashefski,
928 F.2d 349, 352 (10th Cir. 1991) (discussing the nature of
prior offenses under the Guidelines and affirming a sentence for
a felon in possession of a firearm that relied upon a previous
state conviction for possession of a stolen car). As the Sixth
Circuit held in affirming drug conspiracy and money laundering
10
sentences that relied upon a previous state conviction for
carrying a concealed weapon, the concept of separable prior
offenses is based on “different criminal conduct that harmed
different societal interests,” involving two or more offenses
that “occurred at different times and places.” United States v.
Beddow, 957 F.2d 1330, 1339 (6th Cir. 1992). It was not plain
error (if it was error at all, which we do not decide) for the
district court to conclude that Vargas-Garcia’s evasion of and
resistance to arrest after a traffic stop weeks before his
indictment for illegal reentry was a separate prior offense
because it could be seen as embodying just such conduct severable
by time, place, and harmed societal interest. Moreover, adopting
Vargas-Garcia’s broad conclusions would require district courts
to excise every crime committed after an alien’s actual illegal
reentry but before his discovery by law enforcement from the
alien’s criminal history at sentencing, giving convicted
criminals a license to run amok based solely on the nature of
their criminality. Cf. Beddow, 957 F.2d at 1339 (affirming a
district court’s sentence and stating that adopting the “broad
interpretation of offense conduct” advanced by a defendant-
appellant “would render almost every crime committed
contemporaneously with some other offense part of that offense
under U.S.S.G. § 4A1.2”).
Echoing the reasoning of the Second Circuit, we believe
“that the ‘found in’ clause [of 8 U.S.C. § 1326] was included to
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make it clear that if an alien illegally reenters the United
States after deportation, he is subject to prosecution even if
the government does not discover him or the illegality of his
entry until after the time to prosecute him for illegal entry has
expired.” Rivera-Ventura, 72 F.3d at 282. This flexible,
practical intent directly contradicts Vargas-Garcia’s
conclusions. In sum, Vargas-Garcia would have us adopt an
interpretation of the illegal reentry statute contrary to common
sense, the clear intent behind the statute, the holdings of our
sister circuits and the well-settled understanding of prior
offenses and relevant conduct. This we decline to do.
To support his conclusions, Vargas-Garcia claims that in the
past this court “has repeatedly taken an extraordinarily broad
view regarding exactly what may comprise ‘part of the instant
offense.’” (Appellant’s Br. at 5 (citing, inter alia, United
States v. Henry, 288 F.3d 657, 658 (5th Cir. 2002); United States
v. Corro-Balbuena, 187 F.3d 483, 486 (5th Cir. 1999); United
States v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir. 1996)).)
Vargas-Garcia suggests that his conclusions are compelled by this
court’s prior holdings, but his reliance on our decisions in
Henry, Corro-Balbuena, and Santana-Castellano is misplaced.
Contrary to Vargas-Garcia’s suggestions, the precise issue at
hand differs from the central issues in the cases just named, and
our reasoning in these cases actually undercuts his assertions.
In Henry, this court held that an appellant demonstrated
12
that the district court had committed plain error “by including
two points in his criminal-history calculation for a prior one-
year sentence . . . that was imposed upon an adjudication of
guilt for conduct that was part of the offense of conviction.”
Henry, 288 F.3d at 665. Henry involved crimes of criminal
trespass and possession of a firearm while under a restraining
order, not illegal reentry and resisting arrest. Moreover, our
ruling in Henry was based on the fact that both offenses “clearly
resulted from the same conduct on [the exact same date].” Id.
The facts relevant to this appeal present no such clear identity
of conduct and time, since Vargas-Garcia’s traffic violation, and
the resisting arrest offense it spawned, occurred weeks before he
was indicted for illegal reentry.
Corro-Balbuena and Santana-Castellano offer no greater
support for Vargas-Garcia’s argument. In both cases, this court
held that when “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 . . .
.” Santana-Castellano, 74 F.3d at 598; see also Corro-Balbuena,
187 F.3d at 485 (stating that “[s]ection 1326 sets forth a
continuing offense . . . . [that] begins at the time the
defendant illegally reenters the country and does not become
complete unless or until the defendant is found by the INS in the
United States”) (internal citations omitted). Since illegal
reentry was cognized in these cases as a continuing offense,
13
Vargas-Garcia contends that his earlier resisting arrest offense
should be understood as relevant conduct of his own broader,
continuing illegal reentry offense.
Neither case offers any aid to Vargas-Garcia. In Santana-
Castellano, this court interpreted an appellant’s illegal reentry
as a continuing offense in order to give “common sense effect to
. . . [8 U.S.C.] § 1326.” Santana-Castellano, 74 F.3d at 598.
The defendant-appellant in Santana-Castellano was convicted of
illegal reentry after being found in prison by immigration
officials while serving a five-year state sentence for the
offense of injury to a child. Id. at 595-96. During sentencing
for the illegal reentry, the federal district court in Santana-
Castellano sentenced the defendant-appellant based on a PSR that
included “two [criminal history] points under U.S.S.G. § 4A1.1(d)
for having committed the offense of reentering while under a
state sentence of imprisonment.” Id. at 596. On appeal, the
defendant-appellant in Santana-Castellano argued “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.” Id. After analyzing the “found
in” prong of the illegal reentry statute, we affirmed the two-
point sentencing enhancement applied by the district court,
holding that § 1326 “is obviously intended to extend the
definition of the offense to include those situations where the
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alien is the only one who knows the precise date of his
surreptitious entry and knows that he has violated the law in
reentering the country after he has been arrested and deported.”
Id. Far from supporting Vargas-Garcia’s arguments, our reasoning
in Santana-Castellano actually supports the district court’s
sentence: there, as here, we rejected a defendant-appellant’s
arguments and affirmed a district court’s reasoning at sentencing
in order to preserve the “common sense effect” and “obvious[]
inten[t]” of 8 U.S.C. § 1326. Id. at 598.
In Corro-Balbuena, this court held that the defendant-
appellant’s illegal reentry was a continuous offense because he
had illegally reentered the United States at least five times,
with at least four illegal reentries occurring in less than two
years. See Corro-Balbuena, 187 F.3d at 484-85. The defendant-
appellant in Corro-Balbuena was discovered by immigration
officials while in state custody for driving with a suspended
license, and he eventually pleaded guilty to illegal reentry in
violation of 8 U.S.C. § 1326. Id. at 485. On appeal, the
defendant-appellant in Corro-Balbuena argued that “his § 1326
offense [could] only be defined with reference to his most recent
illegal reentry,” and he maintained “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.” Id. at 486. We disagreed, affirming the district
court’s calculation and sentence and holding that the illegal
15
reentry could be understood as a continuous offense because,
although it was “impossible to pinpoint the exact date on which
Corro-Balbuena [last] illegally reentered the United States,”
“[e]ach or any of these multiple surreptitious and illegal
reentries may be used” to support the district court’s sentence.
Id. This appeal is quite different: although it is unclear when
Vargas-Garcia illegally reentered the United States after his
2001 removal, there is no suggestion of multiple surreptitious
border crossings before his discovery by immigration officials,
nor would such crossings be relevant to the prior offense pattern
if they in fact occurred. Therefore, our justification in Corro-
Balbuena for interpreting illegal reentry as a continuing offense
is absent in this appeal; in fact, the flexibility and common
sense that governed our interpretation of 8 U.S.C. § 1326 in
Corro-Balbuena guide our holding today.
For the reasons stated above, we conclude that our past
holdings do not compel us to conclude that the district court
plainly erred in treating Vargas-Garcia’s resisting arrest
offense as part of his prior criminal history. Vargas-Garcia
does not challenge the reasonableness of his sentence or, indeed,
any aspect of the sentence other than the calculation under the
Guidelines of his criminal history score.
B. Vargas-Garcia’s Almendarez-Torres Argument
Vargas-Garcia also contends that the district court erred by
16
treating his prior aggravated felony conviction as a sentencing
factor rather than as an element of his offense because it was
not alleged in his indictment, nor was it ever established beyond
a reasonable doubt. In Almendarez-Torres v. United States, 523
U.S. 224 (1998), the Supreme Court rejected claims that prior
offenses must be treated as separate elements of a charged
offense, holding instead that prior convictions can be treated as
sentencing factors in an illegal reentry context. This issue is
foreclosed before this court by United States v. Izaguirre-
Flores, 405 F.3d 270, 277-78 (5th Cir. 2005), cert. denied, 126
S. Ct. 253 (2005) (quoting United States v. Dabeit, 231 F.3d 979,
984 (5th Cir. 2000), for the proposition that this court must
follow Almendarez-Torres “unless and until the Supreme Court
itself determines to overrule it”). Vargas-Garcia correctly
concedes that relief on this issue remains foreclosed before this
court by Almendarez-Torres and Izaguirre-Flores. He raises this
issue only to preserve it for possible Supreme Court review, and
we decline to consider it further.
IV. CONCLUSION
For the reasons stated above, we AFFIRM.
17