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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 9, 2003 Decided June 3, 2003
No. 02-3052
UNITED STATES OF AMERICA,
APPELLEE
v.
CESAR MARCELLINO MENDEZ-CRUZ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 99cr00066-01)
Tony Axam, Jr., Assistant Federal Public Defender, ar-
gued the cause for appellant. With him on the briefs was A.
J. Kramer, Federal Public Defender. Neil H. Jaffee, Assis-
tant Federal Public Defender, entered an appearance.
Thomas J. Tourish, Jr., Assistant U.S. Attorney, argued
the cause for appellee. On the brief were Roscoe C. Howard,
Jr., U.S. Attorney, John R. Fisher, Barbara J. Valliere,
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
William J. O’Malley, Jr., and Ann M. Carroll, Assistant U.S.
Attorneys.
Before: EDWARDS, HENDERSON and RANDOLPH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge EDWARDS.
EDWARDS, Circuit Judge: On May 20, 1999, appellant Cesar
Marcellino Mendez-Cruz pleaded guilty to illegal reentry
after deportation as an aggravated felon, in violation of 8
U.S.C. § 1326(a) & (b)(2). Appellant was subsequently sen-
tenced to 66 months of incarceration, to be followed by three
years’ supervised release. This sentence was based on a
Presentence Investigation Report (‘‘PSR’’) that included a
two-point criminal history enhancement under U.S.S.G.
§ 4A1.1(d), because appellant had committed some part of the
offense (the act of reentering the United States) while he was
on parole. Appellant did not challenge this enhancement at
the sentencing hearing, but he now argues that it was im-
proper. Appellant contends that the District Court erred in
applying the two-point enhancement, because, in his view, he
pleaded guilty to the status offense of being ‘‘found in’’ the
United States, 8 U.S.C. § 1326(a)(2), and that reentering the
country is neither an element of, nor conduct relevant to, that
offense. Appellant also contends that, even if reentry were
considered relevant conduct, he did not reenter the country
before his parole expired. Because these claims were not
raised during the sentencing hearing, we review for plain
error, see FED. R. CRIM. P. 52(b), and conclude that the
District Court did not plainly err.
Appellant advances the additional claim that his trial attor-
ney rendered ineffective assistance by failing to raise any
challenges to the two-point enhancement. We reject this
contention, because appellant can demonstrate neither that
his attorney committed errors ‘‘so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment,’’ Strickland v. Washington, 466 U.S.
668, 687 (1984), nor that counsel’s failure to challenge the two-
point enhancement resulted in prejudice to appellant.
3
I. BACKGROUND
On April 15, 1985, appellant was convicted of possession
with the intent to distribute a controlled substance in viola-
tion of 21 U.S.C. § 841(a). Appellant was paroled in 1987.
While under parole supervision, appellant was arrested in
New Jersey, charged with possession of cocaine with intent to
distribute, and convicted in 1988. On August 31, 1994, while
still on parole for his 1985 conviction, appellant was deported
to the Dominican Republic. Appellant’s parole was due to
expire on March 24, 1998.
On December 15, 1998, appellant was arrested in Washing-
ton, D.C. following a surveillance operation by agents with the
INS and Drug Enforcement Administration, as well as Met-
ropolitan Police Department officers. At the time of his
arrest, appellant possessed a driver’s license and vehicle
registration in the name of Angel Luis Viera. However, after
the authorities discovered a piece of paper bearing the name
Cesar Mendez-Cruz in appellant’s car, appellant admitted
that he was Cesar Mendez-Cruz, and that he previously had
been deported from the United States following a drug-
related conviction. According to the PSR, appellant informed
officers at the scene ‘‘that he had entered the United States
about one year prior to that date.’’ PSR at 5, ¶ 3 (quoted in
Br. of Appellant at 13). Search warrants were issued for two
of appellant’s properties and agents found further identifica-
tion documents bearing appellant’s likeness but made out in
false names. One of the documents was a United States
passport bearing the name Angel Luis Viera.
On February 25, 1999, appellant was indicted. He subse-
quently pleaded guilty to the lead count of the indictment,
illegal reentry after deportation as an aggravated felon. Fol-
lowing appellant’s plea, the District Court ordered that a PSR
be prepared. In the report writer’s interview with appellant,
appellant said that he had returned to the United States in
1996. The PSR detailed appellant’s offense conduct and
indicated that, after his arrest, appellant admitted to the
arresting agents that he had been deported following a prior
drug-related conviction. It also noted appellant’s remark at
4
the time of his arrest ‘‘that he had entered the United States
about one year prior to that date.’’ The PSR Guidelines
calculation yielded an Offense Level of 21, and a Criminal
History Category of IV. Two criminal history points were
included in that calculation under U.S.S.G. § 4A1.1(d), be-
cause appellant had committed some part of the offense while
on parole.
On August 16, 1999, the District Court adopted the PSR
after neither party objected to the final version of the report.
The court then reviewed the Guidelines calculation set forth
in the report. The court specified the basis for each calcula-
tion, and noted that ‘‘an additional two points [were added to
appellant’s criminal history calculation] because he was on
parole when he committed this offense.’’ Sent. Tr. at 4. In
passing sentence, the trial court noted that both of appellant’s
prior convictions involved substantial amounts of drugs. Id.
at 20. The court reviewed the offense conduct, noted that
appellant’s 1985 conviction was an aggravated felony, and
pointed out that when he was deported, appellant was given
notice of the penalty he would suffer if he returned. The
District Court denied appellant’s request for a downward
departure pursuant to United States v. Smith, 27 F.3d 649
(D.C. Cir. 1994), based upon his status as a deportable alien.
Sent. Tr. at 23-24.
After sentencing, appellant filed a pro se motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255. In an attached memorandum, appellant asserted
that his counsel was ineffective because: (1) counsel failed to
file, as requested, a notice of appeal; (2) counsel failed to
object to the calculation of his criminal history points; and (3)
counsel failed to request a downward departure based on
factors contained in the PSR. With respect to the second
claim, appellant urged that, because, in his view, he was
convicted of being ‘‘found in’’ the United States, his illegal
entry was not part of the offense of conviction, and thus he
did not commit any part of the offense to which he pleaded
guilty while on parole. Further, based on an April 1998 date-
stamp on the passport bearing the name Angel Luis Viera,
5
appellant argued that the record indicated that he entered
the United States after his parole had expired.
On June 28, 2001, after the government opposed the mo-
tion, the District Court issued an 11-page Memorandum
Opinion denying in part appellant’s claim of ineffective assis-
tance of counsel. With respect to the calculation of appel-
lant’s criminal history category, the District Court stated:
By Defendant’s own admission to the officers that
arrested him on December 15, 1998, he ‘‘had entered
the United States about one year prior [to the date
of his arrest].’’ [PSR] at 5, ¶ 13. Thus, according to
the Defendant himself, he likely entered the United
States sometime around December 1997. By any
reasonable interpretation, entering the country is
directly relevant to the instant offense of being
‘‘found in the United States after having been de-
ported.’’ Defendant’s parole from earlier convictions
did not expire until March 25, 1998; as such, he
committed part of the instant offense while on pa-
role, subjecting himself to the application of U.S.S.G.
§ 4A1.1(d) and its enhancements. Defendant’s con-
tention that the enhancement was erroneous is sim-
ply invalid.
United States v. Mendez-Cruz, Nos. 00-1702, 99-66-01 (D.D.C.
June 28, 2001) (mem.), at 7, Appendix (‘‘App.’’) 79 (‘‘June 28
Opinion’’). The District Court thus found that, because
application of the enhancement was appropriate, counsel had
no obligation ‘‘to make an objection that would ultimately
prove either frivolous or in vain,’’ and thus ‘‘counsel’s failure
to object was neither deficient nor prejudicial.’’ Id. at 7-8,
App. 79-80.
The District Court, however, found that the record evi-
dence was insufficient for it to decide appellant’s claim with
respect to the filing of his notice of appeal. The court thus
granted a hearing on that portion of appellant’s motion.
After that hearing, the District Court issued another Memo-
randum Opinion, holding that counsel had failed to consult
with appellant regarding an appeal, as required by Roe v.
6
Flores-Ortega, 528 U.S. 470, 478-79 (2000). Given the evi-
dence of appellant’s desire to pursue an appeal, the court
found that appellant was prejudiced by counsel’s failure. The
court thus reentered the judgment so that appellant could
appeal his sentence.
II. ANALYSIS
A. The Two-Point Enhancement
In challenging the two-point enhancement to his sentence,
appellant first argues that the act of reentering the United
States is not an element of being found in the United States
under 8 U.S.C. § 1326(a), and is inconsequential in establish-
ing a violation of the statute. Appellant points out that
§ 1326(a)(2) provides criminal penalties for any alien who
‘‘enters, attempts to enter, or is at any time found in, the
United States.’’ Three separate offenses are contained in
subsection (a)(2): (1) reentry of a deported alien; (2) attempt-
ed reentry of a deported alien; and (3) being a previously
deported alien who is found in the United States. See United
States v. Pacheco-Medina, 212 F.3d 1162, 1165 (9th Cir. 2000)
(noting that entering, attempting to enter, and being ‘‘found
in’’ the United States under 8 U.S.C. § 1326 are ‘‘three
distinct offenses’’); United States v. Ruelas-Arreguin, 219
F.3d 1056, 1061 (9th Cir. 2000) (same). Appellant argues
that, while the first two offenses require the government to
prove an affirmative act on the defendant’s part (reentry or
attempted reentry), the third offense requires no evidence of
an affirmative act, but only requires that the government
‘‘find’’ the defendant in the United States. Thus, appellant
argues that because being ‘‘found in’’ the United States does
not require the government to prove that the defendant
committed an act, any analysis of his relevant conduct should
only concern the events of December 15, 1998: ‘‘Actions by
the defendant at any other time are irrelevant to determine
his culpability for conviction or to evaluate relevant conduct.’’
Reply Br. of Appellant at 5. This argument is without merit.
The date of reentry must be considered relevant conduct
because it was an ‘‘act[ ] committed TTT during the commis-
7
sion of the offense of conviction, [or] in preparation for that
offense.’’ U.S.S.G. § 1B1.3(a)(1)(A). Reentry was clearly an
act committed during the offense of being found in the United
States because that offense is a continuing violation that
commences with the illegal entry. See, e.g., United States v.
Lopez-Flores, 275 F.3d 661, 663 (7th Cir. 2001); Pacheco-
Medina, 212 F.3d at 1166 (‘‘[T]he concept of entry not only
illuminates but also is embedded in the ‘found in’ offense.’’);
Ruelas-Arreguin, 219 F.3d at 1061 (‘‘[T]he crime of being
‘found in’ the United States commences with the illegal
entryTTTT’’); United States v. Diaz-Diaz, 135 F.3d 572, 575
(8th Cir. 1998); United States v. Castrillon-Gonzalzes, 77
F.3d 403, 406 (11th Cir. 1996) (‘‘The crime of being ‘found in’
the United States illegally TTT was commenced by the TTT
illegal entryTTTT’’).
Appellant argues that, even if the date of entry constitutes
conduct relevant to the offense of being found in the United
States, the record evidence does not support the District
Court’s conclusion that appellant’s most recent reentry oc-
curred while he was on parole. Appellant argues – and we
agree – that the relevant conduct in this case should be
limited to the reentry immediately preceding appellant being
found in the United States: If appellant had previously
entered and then left the country, he avoided prosecution for
that distinct offense when he left. See Ruelas-Arreguin, 219
F.3d at 1061 (‘‘[A]n alien can avoid being ‘found in’ the United
States by departing after his illegal re-entry.’’); United
States v. Ayala, 35 F.3d 423, 425 (9th Cir. 1994) (‘‘To avoid
being ‘found in’ the United States, a deported alien can either
not re-enter the United States or, if he has already re-entered
the United States, he can leave.’’). When the District Court
sentenced appellant, it relied on the PSR, which could sup-
port a 1996 or 1997 reentry date, either of which would have
occurred while appellant was still on parole. Subsequent to
the sentencing, the District Court made clear that it believed
appellant’s most recent entry had occurred in 1997, based on
‘‘Defendant’s own admission to the officers that arrested him
on December 15, 1998, [that] he ‘had entered the United
States about one year prior [to the date of his arrest].’ ’’
8
June 28 Opinion at 7, App. 79. Thus, we examine whether
the District Court erred in finding that appellant reentered
the country in 1997, rather than in April 1998. Because
appellant’s counsel did not object to the enhancement at
sentencing, we review for plain error. See FED. R. CRIM. P.
52(b); United States v. Saro, 24 F.3d 283, 286 (D.C. Cir. 1994)
(‘‘[The defendant] did not raise a timely objection to the
findings or analysis of his pre-sentence reportTTTT [T]he
district court’s decision to adopt the findings and analysis of
that report is therefore reviewable only for plain error.’’)
(citations omitted).
Appellant argues that the 1998 date-stamp on the passport
bearing the name Angel Luis Viera is the clearest evidence of
the date of his most recent reentry. Appellant raised this
argument in his § 2255 motion, but not at his sentencing
hearing. The District Court apparently gave no credence to
this claim, nor do we. A fraudulent passport can hardly be
regarded as conclusive evidence of the date when appellant
unlawfully reentered the United States.
Appellant also argues that the District Court erred in
relying on his statement to the arresting officers in determin-
ing that appellant’s most recent reentry occurred in late 1997.
Appellant argues that, although his statement indicated that
he had entered the United States ‘‘about a year prior to that
date,’’ the phrase ‘‘that date’’ is ambiguous, because it is
unclear from the statement or its context to what specific
date the phrase ‘‘that date’’ refers. Moreover, appellant
argues that, from the context of the PSR, the statement in
question seems to refer to an entry that occurred before
appellant’s 1985 drug conviction, rather than to his reentry
immediately preceding the instant offense. The PSR’s entire
discussion of appellant’s admission reads:
The agent showed the defendant the document bear-
ing the name of Cesar Mendez-Cruz. The agent
informed the defendant that he believed the defen-
dant was Cesar Mendez. He also told the defendant
that he was aware that Cesar Mendez had sustained
a prior drug conviction and had previously been
9
deported. The defendant then acknowledged that
he was the Cesar Mendez-Cruz who had sustained a
drug-related conviction and had been previously de-
ported. The defendant informed that he had en-
tered the United States about one year prior to that
date. The agent transported Mendez-Cruz to the
detention center where he was charged accordingly.
PSR at 5, ¶ 3 (quoted in Br. of Appellant at 12-13). Appel-
lant’s interpretation of the language in the PSR is by no
means so clear that we can find that the District Court plainly
erred by interpreting it to mean that appellant admitted to
illegally entering the country in late 1997. See Saro, 24 F.3d
at 286-87 (stating that, to satisfy the plain error standard, the
error must have been both ‘‘obvious’’ and also prejudicial);
see also United States v. Washington, 115 F.3d 1008, 1010
(D.C. Cir. 1997) (‘‘[E]ven for sentencing, ‘obvious’ means
obvious; the district court is not required to have second
sight.’’).
B. Ineffectiveness of Counsel
We also find no error in the District Court’s determination
that appellant’s counsel did not perform ineffectively by fail-
ing to challenge the two-point enhancement. The standard
for evaluating claims of ineffective assistance of counsel is set
forth in Strickland. There, the Supreme Court set forth a
two-pronged analysis, requiring the defendant to show: (1)
that his attorney’s errors were ‘‘so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment’’; and (2) that the defendant was
prejudiced by those errors. Strickland, 466 U.S. at 687.
Appellant does not satisfy either prong of this test.
To satisfy the first Strickland prong, appellant must prove
that, in light of all the circumstances as they appeared at the
time of the relevant conduct, ‘‘counsel’s representation fell
below an objective standard of reasonableness’’: In other
words, that it fell below the ‘‘prevailing professional norms.’’
Id. at 688; see also United States v. Glover, 153 F.3d 749, 758
(D.C. Cir. 1998). ‘‘Judicial scrutiny of counsel’s performance
10
must be highly deferentialTTTT [T]he defendant must over-
come the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy.’ ’’
Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350
U.S. 91, 101 (1955)); see also United States v. Weathers, 186
F.3d 948, 958 (D.C. Cir. 1999). Appellant cannot make this
showing, because appellant’s counsel may have decided not to
challenge the two-point enhancement for sound strategic rea-
sons. To challenge the enhancement, counsel would have had
to point out that appellant had entered the country illegally to
obtain the fraudulent passport, then left the country and used
the passport again to illegally reenter. Counsel may have
believed that appellant’s case would not be advanced if coun-
sel reminded the court of appellant’s repeated violations,
particularly when appellant was seeking a downward depar-
ture.
As for the second Strickland prong, the District Court
found that there was no prejudice, because appellant’s most
recent entry into the country occurred in late 1997. In other
words, on the facts found by the District Court, appellant’s
two-point enhancement was undoubtedly correct. Therefore,
he was not prejudiced by any failure of his counsel. We must
accept the District Court’s findings of fact regarding appel-
lant’s ineffectiveness claims ‘‘unless they are clearly errone-
ous.’’ United States v. Askew, 88 F.3d 1065, 1070 (D.C. Cir.
1996); see also United States v. Del Rosario, 902 F.2d 55, 58
(D.C. Cir. 1990). For the reasons provided in supra Part
II.A, we find that the District Court did not clearly err in
determining that appellant’s most recent entry occurred in
late 1997.
III. CONCLUSION
For the reasons enumerated above, we affirm appellant’s
two-point criminal history enhancement, and also affirm the
District Court’s determination that appellant’s counsel did not
act ineffectively by failing to challenge the enhancement at
sentencing.