dissenting in part and concurring in part:
These three cases were tried separately before three different district courts. They were consolidated before us because they present common facts and issues. The events in each of the defendants’ cases occurred in the same order: the defendants (1) were deported from the United States; (2) reentered the United States illegally; (3) committed state law crimes; and finally (4) were “found” by immigration officials.
I would find that each of the three district courts separately erred in assigning additional criminal history points to the defendants for state law offenses committed after the defendants illegally reentered the United States, but before each was “found” by immigration authorities. Furthermore, I would find that the district court erred in assigning two additional criminal history points to defendant CruzGramajo for committing an 8 U.S.C. § 1326 offense “while under [another] criminal justice sentence.” U.S.S.G. § 4Al.l(d). Accordingly, I dissent entirely from the majority opinion’s Section III A, “Criminal History Calculation,” and also dissent in part from the majority opinion’s Section III B, “ § 4Al.l(d) Assignment of Points.”
A. Criminal History Calculation1
Under the Sentencing Guidelines, defendants are assigned criminal history points for prior sentences of imprisonment, provided those sentences satisfy certain requirements. See U.S.S.G. § 4A1.1. The Guidelines define a prior sentence as “any sentence previously imposed upon adjudication of guilt ... for conduct not part of the instant offense.” ' U.S.S.G. § 4A1.2(a)(l). Pursuant to the Guidelines then, the district court may not assign criminal history points for ‘ any conduct that was part of the instant offense. See id. An application note to § 4A1.2 explains that “[e]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).” U.S.S.G. § 4A1.2 cmt.l (emphasis added). Under U.S.S.G. § ÍB1.3(a)(l), “relevant conduct” includes “all acts and omissions committed ... 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.... ” (Emphasis added).
The crime of being “found” in the United States pursuant to § 1326 is considered an ongoing offense, because it “commences with the illegal entry, but is not completed until discovery” by immigration officials. United States v. Ruelas-Arreguin, 219 F.3d 1056, 1061 (9th Cir.2000). Here, the defendants each committed state law offenses after their illegal re-entry, but before being “found” by immigration officials. Because § 1326 is an ongoing offense, the defendants’ state law offenses took place *1176“during the commission of’ the defendants’ § 1326 violations. See U.S.S.G. § lB1.3(a)(l). Accordingly, I would find that the district courts should have treated the state law offenses as “relevant conduct,” as defined by U.S.S.G. § 1B1.3, and not as criminal history, because the state law offenses took place “during the commission of’ the § 1326 violations.
The state law offenses should be considered “relevant conduct” in relation to the § 1326 offenses based on the plain meaning of the word “during” in § lB1.3(a)(l). Under the rules of statutory construction, “the plain meaning of unambiguous language in a guideline provision controls.” United States v. Valenzuela, 495 F.3d 1127, 1133 (9th Cir.2007). I agree with the defendants that the plain meaning of the word “during” in the definition of “relevant conduct” in U.S.S.G. § lB1.3(a)(l) indicates a temporal relationship, and nothing more, between the offenses. The term “during” simply indicates a passage of time. Though asserted by the majority, it is infeasible that by solely employing the word “during,” Congress intended that U.S.S.G. § lB1.3(a)(l) was meant to encompass conduct that was both “during” and, “in connection with” the offense of conviction.
The Supreme Court’s ruling in United States v. Ressam, '— U.S.-, 128 S.Ct. 1858, 1860-62, 170 L.Ed.2d 640 (2008), supports the defendants’ plain meaning argument of the word “during.” Though the Court was addressing a different statute, 18 U.S.C. § 844(h)(2),2 Ressam involved statutory language identical to the Guidelines text at issue in this case. See id. at 1860. The defendant in Ressam was convicted of making a false statement on a customs form, a felony, and of carrying an explosive “during the commission of’ that felony in violation of 18 U.S.C. § 844(h)(2).3 Id. at 1860. The government presented no evidence to show that carrying the explosive in any way facilitated the false statement. Our court concluded that the phrase “during the commission of’ required both a temporal connection and “a relational element,” and vacated the § 844(h)(2) conviction accordingly. United States v. Ressam, 474 F.3d 597, 603 (9th Cir.2007), rev’d, - U.S. -, 128 S.Ct. 1858, 170 L.Ed.2d 640 (2008).
The Supreme Court reversed our court’s decision, and in so doing rejected our interpretation of the word, “during.” Ressam, 128 S.Ct. at 1862. The Court instead held that the plain meaning of “during” did not include an “in relation to” requirement:
There is no need to consult dictionary definitions of the word “during” in order to arrive at the conclusion that respondent engaged in the precise conduct described in § 844(h)(2). The term “during” denotes a temporal link; that is surely the most natural reading of the word as used in the statute. Because respondent’s carrying of the explosives was contemporaneous with his violation of § 1001, he carried them “during” that violation.
Id. at 1861 (emphasis added). I believe we should follow the Supreme Court’s analysis and similarly interpret the word “during” in § lB1.3(a)(l) to signify a temporal link only.
*1177Additionally, it seems that by employing the majority opinion’s interpretation of the word “during,” luck will become an inextricable element of our sentencing process. If a defendant illegally reenters the country but is not “found” for many years, and in the meantime commits a number of state law offenses, then his criminal history point total under the Sentencing Guidelines will increase. This defendant will serve a much longer sentence for his § 1326 offense compared to the sentence he would serve for the same offense if “found” by immigration authorities the day he illegally reentered. Following the majority opinion’s view, criminal history points will be allocated based on the arbitrary actions of immigration authorities rather than the actions of defendants. I believe we should be punishing defendants for their own actions, and not the actions of immigration officials.
I further find that each district court’s error in interpreting the Guidelines was not harmless. The sentence ranges of all three defendants increased because of their enhanced criminal history categories. For example, defendant Cruz-Gramajo received four additional criminal history points for two state law crimes he committed after he illegally re-entered to the United States. The four additional points increased his total to nine. The four additional criminal history points pushed him from Category III to Category IV, increasing his Guidelines range from 46-57 months to 57-71 months. The district court ultimately sentenced Cruz-Gramajo to 57 months of incarceration. The sentence ranges of Aguilar-Rodriguez and Pulido similarly increased. Given that the binding plea agreements of all three defendants mandated sentences at the low end of the appropriate Guidelines range, there is no doubt that the errors were not harmless. Accordingly, I dissent from Part III A of the majority opinion.
B. § 4Al.l(d) Assignment of Points
I concur in the majority opinion’s determination that the district court accurately assigned defendant Aguilar-Rodriguez two additional criminal history points under U.S.S.G. § 4Al.l(d). Though not addressed by the majority opinion, under the de novo standard I would hold that the district court’s assignment of two additional criminal history points to defendant Cruz-Gramajo pursuant to U.S.S.G. § 4Al.l(d) was misguided. Section 4Al.l(d) directs a district court to add two criminal history points “if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, [or] imprisonment....” The district court assigned these two additional points to CruzGramajo pursuant to § 4Al.l(d) because immigration authorities “found” him in April 2007, when he was serving time in the Los Angeles County Jail for grand theft and burglary.
I believe the district court’s reading of § 4Al.l(d) leads to absurd results in sentencing Cruz-Gramajo for his § 1326 illegal reentry offense because Cruz-Gramajo was incarcerated when he was “found” by immigration authorities.4 The majority opinion quotes United States v. Ayala, 35 F.3d 423, 425 (9th Cir.1994), that “[t]o avoid being ‘found in’ the United States, a deported alien can either not re-enter the United States or, if he has already re*1178entered the United States, he can leave” (Emphasis added). Cruz-Gramajo, however, was in jail, and so could not leave the United States to avoid being “found.”5
By assigning two additional points to Cruz-Gramajo pursuant to § 4Al.l(d) in addition to the four criminal history points the court assigned pursuant to § 4A1.2, the district court effectively punished Cruz-Gramajo three times for the same grand theft and burglary offenses he committed in 2006:
(1) Cruz-Gramajo served jail sentences imposed by a California state court for his 2006 grand theft and burglary offenses.
(2) Because Cruz-Gramajo was “found” by immigration authorities after he was sentenced for grand theft and burglary, the district court indulged in the legal fiction that Cruz-Gramajo committed thé illegal reentry offense after he committed the grand theft and burglary offenses. The district court thus assigned four additional criminal history points for the grand theft and burglary convictions in its calculation of Cruz-Gramajo’s illegal reentry sentence.6
(3) Finally, because Cruz-Gramajo was “found” by immigration authorities while serving jail time for grand theft and burglary, the district court employed a further legal fiction: that Cruz-Gramajo illegally reentered the United States while serving a jail sentence for grand theft and burglary. Thus, the district court further punished Cruz^Gramajo with two additional criminal history points.
I find that employing such legal fictions is illogical and unfair in Cruz-Gramajo’s case. Accordingly, I disagree with the district court’s assessment of two additional 'criminal history points for “committing] the [illegal reentry] offense while under [another] criminal justice sentence.”7 U.S.S.G. § 4Al.l(d).
'The majority contends that because the two points subtracted from Cruz-Gramajo’s criminal history point total would not change his criminal history category (it would remain at IV), any error the district court may have made in assigning points to Cruz-Gramajo pursuant to U.S.S.G. § 4Al.l(d) would be harmless. But I disagree. As I explained in Section A of this dissent, Cruz-Gramajo should not have been assigned four criminal history points for the state law offenses he committed after he re-entered the United States but before he was “found.” His criminal history total of nine points should have been reduced by four points, to a total of five points, thereby reducing his criminal history category from Category TV to Category III. Then, if an additional two points were subtracted because the district court erred in assigning Cruz-Gramajo two additional criminal history points under U.S.S.G. § 4Al.l(d), Cruz-Gramajo’s criminal history category would be further reduced to Category II, and his sentencing range reduced to 41-51 months. Instead, the district court calculated a sentencing range of 57-71 months. Cruz-Gramajo’s substantive rights are affected here, when both issues on appeal are viewed together. Accordingly, I dissent from the majority’s treatment of defendant Cruz-Gramajo on *1179this issue, but concur in its holding regarding defendant Aguilar-Rodriguez.
. I have given the two sections of this dissent the same titles as the corresponding sections of the majority opinion. But both Section A and Section B of this dissent (and the majority opinion) concern criminal history calculations.
. 18 U.S.C. § 844(h)(2) requires that ”[w]ho-ever carries an explosive during the commission of any felony which may be prosecuted in a court of the United States ... shall, in addition to the punishment provided for such felony, be sentenced to imprisonment for 10 years.” (emphasis added).
. The defendant in Ressam entered the U.S. with a trunk full of explosives. Ressam, 128 S.Ct. at 1860. He then falsely filled out a customs form. Id. Later, authorities searched his car and found the explosives. Id.
. I agree with the majority that the district court properly assigned criminal history points to Aguilar-Rodriguez under U.S.S.G. § 4A 1.1(d) for violating § 1326 while under a criminal justice sentence. Aguilar-Rodriguez was not imprisoned when he was "found” by immigration authorities, and thus could have left the United States to avoid violating § 1326.
. We did not address this issue in United States v. Lomeli-Mences, 567 F.3d 501 (9th Cir.2009), because it did not come to our attention in that case.
. This issue is discussed in detail in Section A of this dissent.
. I also disagree with the four criminal history points the district court assigned to CruzGramajo pursuant to U.S.S.G. § 4A1.1, as I explained in Section A of this dissent.