[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
___________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-13276 MAY 8, 2006
___________________________ THOMAS K. KAHN
CLERK
D.C. Docket No. 05-60012-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEONARD SCOTT,
Defendant-Appellant.
___________________________
Appeal from the United States District Court
for the Southern District of Florida
____________________________
(May 8, 2006)
Before ANDERSON, FAY and SILER*, Circuit Judges.
*
The Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
SILER, Circuit Judge:
Defendant Leonard Scott pled guilty to illegal reentry into the United States
after having been previously deported in violation of 8 U.S.C. § 1326. At sentencing,
the district court added one criminal history point to Scott’s criminal history
calculation in accord with USSG § 4A1.1(e). Scott contends that this addition was
in error. For the following reasons, we vacate the sentence and remand the case for
resentencing.
BACKGROUND
Scott was deported from the United States in 1991 and, having never submitted
an application requesting reentry, illegally reentered the United States in 1994 under
the name of Michael Anderson. In 1999, Scott was convicted in Broward County,
Florida state court of two counts of possession of cocaine. In February of that year,
he received a probationary sentence after pleading guilty to both counts. Sometime
in the intervening period, Scott violated the terms of his probation and an arrest
warrant was issued. On August 25, 2004, Scott was arrested in Lee County, Florida,
on this arrest warrant. At this time, Scott was still using the alias Michael Anderson
and he was jailed under that name. That same day Scott was interviewed by Bureau
of Immigration and Customs Enforcement (“ICE”) Agent Sean Mullin in the Lee
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County jail. Scott gave Agent Mullin his true name, advised him that he had entered
the country illegally, and provided the agent with details about his previous
deportation and illegal reentry.
Scott was then transferred to the Broward County jail and, on September 15,
2004, a Broward County court revoked Scott’s probation on the previous cocaine
possession charges and sentenced Scott to 180 days’ imprisonment. While serving
this sentence in the Broward County jail, Broward County authorities discovered that
Scott’s fingerprints (Scott was still interned in Florida under the name of Michael
Anderson) matched those of an individual named Leonard Scott who had previously
been deported from the United States. The Broward County authorities contacted
ICE with this information on January 4, 2005. The following day ICE Agent Sammy
Cruzcoriano visited the jail and interviewed Scott. Scott “gave a full confession” –
admitting his real name, stating that he had been previously deported, and that he had
illegally reentered the United States using a fraudulent passport. Later that day, the
FBI matched fingerprints taken that day by Agent Cruzcoriano with the fingerprints
on file from Scott’s deportation in 1991. Agent Cruzcoriano reviewed Scott’s alien
file and confirmed his identity.
On January 6, 2005, an arrest warrant was issued for Scott on immigration
violations and a federal grand jury returned an indictment on January 18 charging
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Scott with illegally reentering the United States in violation of 8 U.S.C. § 1326. Scott
pled guilty to that charge on March 18, 2005. After calculating Scott’s Sentencing
Guidelines range as 30-37 months, the district court sentenced him to 26 months’
imprisonment, giving Scott four months’ credit for time served between his initial
interview with Agent Mullin and the return of the federal indictment in January.
Scott timely appealed his sentence to this court.
DISCUSSION
Scott argues that the district court improperly calculated his criminal history
points under the Sentencing Guidelines by erroneously adding one point pursuant to
USSG § 4A1.1(e) for committing the instant offense while under a sentence of
imprisonment of at least sixty days. This error, he claims, was significant because it
increased his total criminal history points to ten and thereby placed him in criminal
history category V, resulting in a sentencing range of 30 to 37 months’ imprisonment.
Without the disputed criminal history point, Scott would have had only nine criminal
history points, placing him in criminal history category IV and a sentencing range of
24-30 months.
In determining the criminal history category of a defendant, USSG § 4A1.1(e)
provides:
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Add 2 points if the defendant committed the instant offense less than
two years after release from imprisonment on a sentence counted under
(a) [a sentence exceeding 13 months] or (b) [a sentence of at least 60
days] or while in imprisonment or escape status on such a sentence. If
2 points are added for item (d), add only 1 point for this item.
In this case, the district court found that Scott had committed the charged illegal
reentry offense while he was serving a 180-day sentence for a probation violation and
therefore the district court added, over Scott’s objections, one criminal history point
to the Guidelines calculation.1 Scott argues that the addition of the criminal history
point under § 4A1.1(e) was an error because he did not begin serving the 180-day
sentence until after his violation of 8 U.S.C. § 1326 was complete.
“The district court’s interpretation of the sentencing guidelines is subject to de
novo review on appeal, while its factual findings must be accepted unless clearly
erroneous.” United States v. Jordi, 418 F.3d 1212, 1214 (11th Cir. 2005) (internal
quotations and citations omitted).
An alien is guilty of illegal reentry if he has been previously deported from the
United States and thereafter “enters, attempts to enter, or is at any time found in, the
United States.” 8 U.S.C. § 1326(a)(2). Scott was indicted and convicted of being an
alien who, “having been previously deported from the United States on or about April
1
As this offense had already been counted under USSG § 4A1.1(d) (since Scott committed
the instant offense while on probation), the district court added only one point pursuant to the last
sentence of § 4A1.1(e).
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18, 1991, was found in the United States, knowingly and unlawfully” in violation of
§ 1326. The issue before us focuses squarely upon the meaning of the phrase “found
in.” To properly assess Scott one criminal history point under § 4A1.1(e), he must
have been“found in” the United States only after he began serving the 180-day
sentence. In other words, if Scott cannot be considered to have been found at any
time after September 15, 2004 (the date the 180-day sentence was handed down), then
the assessment is inappropriate since the illegal reentry offense would have been
completed on that date and that offense would have been committed before Scott
began serving his sentence. Therefore, we must determine when Scott’s crime of
illegal reentry was completed – meaning when was he “found in” the United States.
We have discussed the meaning of the “found in” language of § 1326
previously. In United States v. Coeur, 196 F.3d 1344 (11th Cir. 1999), we noted that
we had previously “held that the crime of being ‘found in’ the United States
commences when the alien enters the United States and is not completed until the
defendant’s arrest.” Id. at 1346 (citing United States v. Castrillon-Gonzalez, 77 F.3d
403, 406 (11th Cir. 1996)). The Coeur court went on to cite with approval a Fifth
Circuit decision holding that “a previously deported alien is ‘found in’ the United
States when his physical presence is discovered and noted by the immigration
authorities.” Id. (quoting United States v. Santana-Castellano, 74 F.3d 593, 598 (5th
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Cir. 1996)) (internal quotations omitted). Ultimately, the Coeur court found that the
defendant in that case warranted a two-point assessment under USSG § 4A.1(d) since
he was in jail when Immigration and Naturalization Services officials discovered his
presence. Id. This decision was clarified in United States v. Clarke, 312 F.3d 1343
(11th Cir. 2002), when we stated that the “‘found in’ [language] contained in § 1326
refers to the actions of federal immigration officials, not those of state law
enforcement officials.” Id. at 1348. There is also language in Clarke noting that
other circuits have held immigration officials to a constructive knowledge standard.
Clarke stated that, in other circuits, a defendant may be considered “found” when
government authorities, “with the exercise of diligence typical of law enforcement
authorities, could have discovered the illegality of the defendant’s presence.” Id. at
1346 (internal quotations and citations omitted). In fact, Clarke went on to conduct
a constructive knowledge inquiry and, in finding that the federal government had no
reason to know of the defendant’s presence, distinguished the cases presented by the
defendant by noting that immigration authorities in those cases “had information that,
through the exercise of diligence typical of law enforcement authorities, could have
led to the discovery of the defendant’s illegal presence.” Id. at 1348 n.4
(distinguishing United States v. Gomez, 38 F.3d 1031 (8th Cir. 1994), and United
States v. DiSantillo, 615 F.2d 128 (3d Cir. 1980)).
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The government correctly states that a violation of § 1326 is a continuing
offense that can run over a long period of time, as the offense conduct begins when
the alien illegally enters the United States and continues until the alien is actually
“found” by immigration authorities. See Coeur, 196 F.3d at 1346. However, the
question here deals with when an alien is deemed to be “found” by immigration
authorities under § 1326 and is an issue that has never been squarely decided in this
circuit. Following the language in Clarke, we hold that an alien is constructively
“found in” the United States when the government either knows of or, “with the
exercise of diligence typical of law enforcement authorities, could have discovered
the illegality of the defendant’s presence.” 312 F.3d at 1346 (citing United States v.
Herrera-Ordones, 190 F.3d 504, 510-11 (7th Cir. 1999); United States v. Bencomo
Castillo, 176 F.3d 1300, 1303 (10th Cir. 1999); United States v. Santana-Castellano,
74 F.3d 593, 598 (5th Cir. 1996); United States v. Moses, 148 F.3d 277, 282 (2d Cir.
1995)) (internal quotations omitted).
The government claims that Agent Mullin’s interview of Scott on August 25
was merely a preliminary step in the investigation into Scott’s identity and
immigration status, and that
[a]dditional investigative measures – [such as] obtaining Scott’s ICE
alien file, obtaining his fingerprints, comparing his fingerprints to the
fingerprints taken from the Leonard Scott who had been deported from
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the United States in 1991 – were required before a valid determination
could be made concerning both Scott’s identity and the legality of his
presence in the United States.
The entire investigation, they claim, was not completed until January 5. Any
constructive knowledge standard must give immigration authorities adequate time to
investigate and confirm the identity of individuals before them. Therefore, had a
government investigation into Scott’s identity conducted “with the exercise of
diligence typical of law enforcement authorities” actually taken the entire four
months, then Scott would be deemed “found in” the United States only at the
completion of that investigation.
However, the record suggests that the government’s claims of an ongoing
investigation are incorrect. The Presentence Investigation Report (“PSR”), whose
reasoning the district court adopted, simply states that the criminal history point
applies since Scott was discovered by immigration authorities on January 5 and was
serving a sentence at that time. It contains no reference to the August 25 interview.
In fact, the description of the offense conduct in the PSR makes no reference to the
events of August 25 and, indeed, reads as if immigration authorities’ first notice of
Scott’s presence in the United States began on January 4 with the call from the
Broward County jail. Neither the government’s factual basis for the defendant’s
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guilty plea,2 given at the change of plea hearing, nor the PSR mention the August 25
interview by Agent Mullin. Moreover, the statement obtained from Scott by Agent
Cruzcoriano on January 5 contains no reference to the August interview. The fact
that the January 5 interview contains no reference to anything from the August 25
interview significantly detracts from the government’s argument that Agent
Cruzcoriano’s interview was simply a follow-up to the interview by Agent Mullin.
In the end, a review of the record suggests that Agent Mullin’s August
interview and Agent Cruzcoriano’s January interview were completely unrelated.
The most likely scenario appears to be as follows: the information gathered during
Agent Mullin’s interview with Scott was either set aside or lost and immigration
authorities forgot about Scott. The call from Broward County about the fingerprint
match refocused attention on Scott and ICE rediscovered his case. This time, they
followed through on the initial investigation by Agent Cruzcoriano and Scott was
quickly prosecuted.
Based upon this reading of the facts, it is only fair to hold that Scott was
constructively “found in” the United States during his August 25 interview. To do
otherwise would penalize Scott for a delay that was no fault of his own. During his
2
“[T]he government would show . . . that on or about January 4th, 2005, United States
Customs . . . received a call from the Broward County Jail. That call involved [the fingerprint
match]” and the interview with Agent Cruzcoriano followed.
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August 25 interview, Scott was completely honest with Agent Mullin (stating his real
name, the alias he was then operating under, his correct personal information,
confessing his illegal reentry and presence in the United States, detailing the prior
date of his deportation, and detailing how he illegally reentered the country) and the
government does not claim that Scott withheld any material information. It appears
that immigration authorities simply lost track of Scott in August and, only upon
notification of the fingerprint match, restarted their investigation. This is a case
where “government authorities, with the exercise of diligence typical of law
enforcement authorities, could have discovered the illegality of the defendant’s
presence.” Clarke, 312 F.3d at 1346 (internal quotations and citations omitted).
Accordingly, Scott should be considered “found in” the United States for
purposes of 8 U.S.C. § 1326 on August 25, 2004. At this time, he was neither under
a sentence of imprisonment of at least 60 days nor was he less than two years
removed from such a sentence. Therefore, the district court improperly applied
USSG § 4A1.1(e) when it added one point to his criminal history calculation under
that provision. For this reason, we VACATE Scott’s sentence and REMAND to the
district court for resentencing.
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