United States v. Vargas-Garcia

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.

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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.

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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

6
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

11
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

14
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.

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