UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5222
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARTURO HERNANDEZ-FRIAS, a/k/a Sergio Armando Andrade-Lopez,
a/k/a Arturo Fries Hernandez,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:09-cr-00211-REP-1)
Argued: March 20, 2012 Decided: April 12, 2012
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion
ARGUED: Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. Richard Daniel
Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee. ON BRIEF: Samuel P. Simpson, V, MONTGOMERY &
SIMPSON, LLLP, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Arturo Hernandez-Frias pleaded guilty to being “found in”
the United States after previously being deported subsequent to
a conviction for an aggravated felony, in violation of 8 U.S.C.
§ 1326(a). Hernandez-Frias appeals his sentence, challenging
both the calculation of his criminal history points under the
U.S. Sentencing Guidelines and the district court’s failure to
provide an individualized explanation for his sentence. For the
reasons that follow, we affirm.
I.
Hernandez-Frias, a native of Mexico, legally entered the
United States on a work permit when he was a teenager. In 1990,
however, he was convicted in California of a felony offense for
drug distribution, resulting in the cancellation of his work
permit. In 1993, Hernandez-Frias was convicted of another drug-
related felony offense.
In 2000 and again in 2004, U.S. immigration authorities
arrested Hernandez-Frias and deported him from the United States
to Mexico. Each time, following his return to Mexico,
Hernandez-Frias illegally reentered the United States. On July
23, 2005, Hernandez-Frias was arrested in Virginia for driving
under the influence (“DUI”); a state court subsequently
convicted him of the offense. He incurred another DUI
2
conviction in Virginia in 2009. While he was in jail for his
second DUI conviction, on June 30, 2009, U.S. immigration
authorities discovered that he was in the United States and
charged him with the instant offense.
Hernandez-Frias pleaded guilty to one count of being “found
in” the United States after previously being deported subsequent
to a conviction for an aggravated felony in violation of
8 U.S.C. § 1326(a). In preparing Hernandez-Frias’s presentence
report (“PSR”), the probation officer determined that Hernandez-
Frias’s offense commenced on July 23, 2005 -- the date on which
Hernandez-Frias was arrested for his first DUI in Virginia. 1 The
probation officer then used this date to calculate Hernandez-
Frias’s criminal history score pursuant to the U.S. Sentencing
Guidelines (“U.S.S.G.”).
Based on the July 23, 2005 commencement date, the probation
officer added criminal history points for Hernandez-Frias’s drug
conviction in 1990. See U.S.S.G. §§ 4A1.1(a), 4A1.2(e)(1)
(directing the addition of three criminal history points for
“[a]ny prior sentence of imprisonment exceeding one year and one
month that was imposed within fifteen years of the defendant’s
1
The PSR does not explain the probation officer’s choice of
July 23, 2005 as the commencement date. The reason is obvious,
however: it was the first date after Hernandez-Frias’s 2004
deportation for which the record conclusively established his
illegal presence in the United States.
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commencement of the instant offense”). Additionally, the
probation officer added two criminal history points because he
found that Hernandez-Frias committed the instant offense while
under the three-year “good behavior” sentence imposed in
September 2005 for his first DUI conviction. See U.S.S.G.
§ 4A1.1(d) (directing the addition of two criminal history
points “if the defendant committed the instant offense while
under any criminal justice sentence”). With the addition of
these points, and others not relevant to this appeal, the
probation officer calculated that Hernandez-Frias had a criminal
history category of V.
In the district court, neither party initially objected to
the presentence report. At the sentencing hearing, however,
when the court asked if either party had any objections, defense
counsel stated that Hernandez-Frias “has a question with regard,
apparently, to use of his prior record in [the] calculation of
his sentencing guidelines, [in that] some of the items on the
record are old.” Counsel continued that the objection “has to
do with when this criminal conduct started, how long before, you
know, the 15 years’ issue.” Defense counsel offered that he did
not “think we’ve got a valid objection” on that issue. The
district court granted a recess for defense counsel and
Hernandez-Frias to confer. After the recess, Hernandez-Frias
stated on the record that he had no objections. The court then
4
adopted the presentence report as tendered by the probation
officer, which yielded an advisory Guidelines range of 70 to 87
months.
Upon hearing the parties’ sentencing arguments, the
district court sentenced Hernandez-Frias to 72 months in prison.
The court stated that it had considered the 18 U.S.C. § 3553(a)
factors and that it believed that a within-Guidelines sentence
would accomplish the goals of those factors. After announcing
the sentence, the court informed Hernandez-Frias that “it would
have been perfectly legitimate to have imposed the punishment of
87 months, but I did not feel it was a justifiable use of the
public funds to incarcerate you for the extra 15 months. And if
you don’t learn in 72 months, you aren’t going to learn in 87
months that you can’t come back to this country without legal
permission.”
Hernandez-Frias timely noted this appeal.
II.
A.
Title 8, section 1326 of the U.S. Code prohibits aliens who
have been previously removed from this country from “enter[ing],
attempt[ing] to enter, or [being] . . . found in, the United
States” without permission from the U.S. Attorney General.
Hernandez-Frias pleaded guilty to the offense of being “found
5
in” the United States. On appeal, Hernandez-Frias argues that
the district court miscalculated his criminal history score
under the Sentencing Guidelines because it used the wrong date
for the commencement of his offense. He asserts that the
offense of being “found in” the United States commences on the
date that immigration authorities discover a defendant in the
United States. Thus, according to Hernandez-Frias, his offense
commenced on June 30, 2009 -- not July 23, 2005 as stated in his
PSR. If his offense commenced on June 30, 2009, he notes that
the district court should not have assessed criminal history
points under U.S.S.G. § 4A1.1(a) or U.S.S.G. § 4A1.1(d) and the
exclusion of these points would have produced a lower applicable
Guidelines range.
In assessing a challenge to a district court’s application
of the Guidelines, we typically review the court’s factual
findings for clear error and its legal conclusions de novo.
United States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006).
Because Hernandez-Frias did not object to the calculation of his
criminal history score before the district court, we review
Hernandez-Frias’s claim for plain error. 2 To prevail, Hernandez-
2
The Government contends that by withdrawing his objection
at the sentencing hearing Hernandez-Frias waived his claim
entirely. See United States v. Olano, 507 U.S. 725, 733 (1993)
(comparing “waiver” and “forfeiture”). Hernandez-Frias counters
that this court should not find waiver because the record does
(Continued)
6
Frias must demonstrate that the district court committed error,
that the error was plain, and that the error affected Hernandez-
Frias’s substantial rights. Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 731-32 (1993). We hold that he
cannot do so; the district court did not plainly err in
calculating his criminal history score.
The first criminal history enhancement at issue,
§ 4A1.1(a), instructs the district court to add three points to
the defendant’s criminal history score for each prior sentence
of imprisonment exceeding thirteen months. U.S.S.G. § 4A1.1(a).
Such a prior sentence counts only if it “was imposed within
fifteen years of the defendant’s commencement of the instant
offense” or “resulted in the defendant being incarcerated during
any part of such fifteen-year period.” U.S.S.G. § 4A1.2(e)(1).
The Guidelines commentary explains that “the term ‘commencement
of the instant offense’ includes any relevant conduct.” Id.
cmt. n.8 (citing U.S.S.G. § 1B1.3(a)(1)).
Abundant case law holds that the “relevant conduct” of
being “found in” the United States commences on the date that
not make clear that Hernandez-Frias’s objection at the hearing
was the same as the claim he now raises on appeal. Indeed,
defense counsel’s explanation to the district court of
Hernandez-Frias’s objection was hardly precise. We need not
address this dispute, however, because we reject Hernandez-
Frias’s claim even under plain error review.
7
the defendant illegally reenters the country and continues until
he or she is discovered by immigration authorities. See, e.g.,
United States v. Delgado-Hernandez, 646 F.3d 562, 567 (8th Cir.
2011); United States v. Hernandez-Guererro, 633 F.3d 933, 937
(9th Cir. 2011); United States v. Hernandez-Gonzalez, 495 F.3d
55, 60-61 (3d Cir. 2007); United States v. Ruiz-Gea, 340 F.3d
1181, 1189 (10th Cir. 2003); United States v. Mendez-Cruz, 329
F.3d 885, 889 (D.C. Cir. 2003); United States v. Lopez-Flores,
275 F.3d 661, 663 (7th Cir. 2001). In accord with our sister
circuits, we conclude that the offense of the defendant,
Hernandez-Frias, commenced upon his reentry to the United
States, not when he was “found” in the United States by
immigration authorities. Because the record does not disclose
the precise date of Hernandez-Frias’s reentry, the district
court reasonably used the date of his July 23, 2005 DUI as the
commencement date -- the first date that the record conclusively
establishes Hernandez-Frias’s illegal presence in the United
States following his 2004 deportation.
Using July 23, 2005 as the offense commencement date, the
district court appropriately added criminal history points
pursuant to § 4A1.1(a) for Hernandez-Frias’s 1990 drug
conviction. Hernandez-Frias’s 1990 drug conviction carried a
8
sentence exceeding thirteen months 3 and it resulted in his
incarceration within fifteen years of July 23, 2005. Therefore,
the district court properly assessed criminal history points for
that prior conviction under § 4A1.1(a).
The district court also properly assessed criminal history
points because Hernandez-Frias committed part of his § 1326
offense while under a probationary sentence for his 2005 DUI
conviction. Section 4A1.1(d) and its commentary instruct the
district court to add two points to a defendant’s criminal
history score “if the defendant committed any part of the
instant offense (i.e., any relevant conduct) while under any
criminal justice sentence.” U.S.S.G. § 4A1.1(d) cmt. n.4.
Hernandez-Frias’s 2005 DUI conviction carried a three year good-
behavior sentence. Thus, Hernandez-Frias’s illegal presence in
the United States overlapped with his good-behavior sentence and
the district court appropriately added criminal history points
under § 4A1.1(d).
3
Hernandez-Frias’s original sentence for the 1990 drug
conviction was incarceration for 240 days followed by 36 months
of probation. But, on September 21, 1990, Hernandez-Frias
received an additional 180 days incarceration for a probation
violation. Under U.S.S.G. § 4A1.2(k)(1), such revocation
sentences are added to the original term of imprisonment for the
purposes of computing criminal history points, thereby carrying
Hernandez-Frias over the thirteen month threshold.
9
B.
We also reject Hernandez-Frias’s alternative argument that,
even if his offense commenced upon his illegal reentry to the
United States, his offense could not have commenced prior to
December 2007. The unrebutted evidence in the record
establishes that Hernandez-Frias was in the United States as of
July 23, 2005. But based on a stray statement in his PSR,
Hernandez-Frias asserts that his most recent reentry to the
United States occurred in December 2007 or later. He did not
raise this point in the district court, and we reject his
argument as lacking adequate factual support to show plain
error.
Hernandez-Frias’s assertion that he left the United States
after July 23, 2005 rests entirely on the single statement in
his PSR that he “last saw his children in December 2007.”
Because his children reside in Mexico, he claims that this
statement proves that he visited Mexico in December 2007. But
Hernandez-Frias’s argument would require us to make the
circumstantial inference that simply because Hernandez-Frias saw
his children in December 2007, he must have traveled to Mexico
to do so. But, of course, it is also possible that the children
10
came to the United States. 4 And Hernandez-Frias offered no other
evidence of his alleged return to Mexico. On this record, the
PSR’s lone nonspecific reference to seeing his children is far
from sufficient to establish that the district court plainly
erred by not dating the commencement of Hernandez-Frias’s
offense to December 2007.
III.
Finally, Hernandez-Frias argues that the district court
committed reversible error in failing to provide an
individualized explanation of his criminal sentence in light of
the factors enumerated under 18 U.S.C. § 3553(a). See United
States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (“Regardless
of whether the district court imposes an above, below, or
within-Guidelines sentence, it must place on the record an
‘individualized assessment’ based on the particular facts of the
case before it.”); see also United States v. Lynn, 592 F.3d 572,
576, 581 (4th Cir. 2010). The Government concedes that the
district court committed procedural error in providing an
inadequate explanation for Hernandez-Frias’s sentence, but
4
The PSR additionally states that Virginia Steel Erectors
employed Hernandez-Frias “[f]rom 2000 until his arrest for the
instant offense,” suggesting his continuous presence in the
United States.
11
contends that the error was harmless. Gov’t Br. at 43. We
agree.
As a threshold matter, we note that Hernandez-Frias did
properly preserve an objection to his sentence. To preserve a
challenge to an insufficiently explained sentence, “the
defendant need not specifically object after the court has
pronounced a sentence, but he must at some point in the
proceedings ‘draw[] arguments from § 3553 for a sentence
different than the one ultimately imposed . . . .’” United
States v. Powell, 650 F.3d 388, 395 (4th Cir. 2011) (quoting
Lynn, 592 F.3d at 576). By requesting a sentence “at the low
end of the advisory guidelines” and the “minimum sentence
recommended by the advisory guidelines,” Hernandez-Frias
effectively requested a sentence of 70 months. The district
court, however, sentenced him to 72 months incarceration.
Accordingly, Hernandez-Frias preserved an objection to his
sentence.
Because he preserved an objection, we apply harmless error
review in considering whether the district court’s procedural
error warrants reversal. Lynn, 592 F.3d at 579. Under that
standard, “the government may avoid reversal only if it
demonstrates that the error did not have a substantial and
injurious effect or influence on the result and we can say with
fair assurance, that the district court’s explicit consideration
12
of [the defendant’s] arguments would not have affected the
sentence imposed.” United States v. Boulware, 604 F.3d 832, 840
(4th Cir. 2010) (internal quotation marks and alterations
omitted). The Government has satisfied that burden in this
case.
At sentencing, Hernandez-Frias made several straightforward
arguments under 18 U.S.C. § 3553(a), namely that his age, the
age of his prior convictions, and the impact of his
incarceration on his family counseled in favor of a lesser
sentence. The record in this case indicates that the district
court considered and appreciated Hernandez-Frias’s § 3553(a)
arguments. After hearing Hernandez-Frias’s arguments and
personal allocution, the court stated that it had considered the
§ 3553(a) factors and believed that a within-Guidelines sentence
for Hernandez-Frias would accomplish the objectives of
§ 3553(a). 5 Then, the district court sentenced Hernandez-Frias
to 72 months imprisonment -- only two months above the sentence
Hernandez-Frias requested (and fifteen months below the sentence
requested by the Government).
5
Additionally, earlier in the sentencing hearing, the
district court granted a recess for Hernandez-Frias and his
counsel to confer over a possible objection to the age of his
prior convictions, suggesting that the court was aware that the
staleness of Hernandez-Frias’s prior convictions was a relevant
consideration.
13
Hernandez-Frias raised uncomplicated, relatively weak
sentencing arguments. Although the district court erred by
failing to address them specifically on the record, we believe
that a remand for resentencing would not change the sentence
imposed given that the district court sentenced Hernandez-Frias
to nearly the sentence that he requested. Boulware, 604 F.3d at
840 (declining to remand for resentencing where such a remand
would be “pointless”). Indeed, on this record, we believe that
the district court undertook the analysis required by Carter,
but simply failed to make that analysis explicit. Under these
circumstances, the district court’s error was harmless.
Accordingly, we affirm the judgment of the district court.
AFFIRMED
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