USA v. Gustavo Reyes-Ceja

Filing

FILED OPINION (ANDREW J. KLEINFELD, RICHARD A. PAEZ and MILAN D. SMITH, JR.) AFFIRMED. Judge: AJK Authoring, FILED AND ENTERED JUDGMENT. [8571214]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA ,
Plaintiff-Appellee,

No. 11-50167

v.

D.C. No.
2:10-cr-00042ODW-1

GUSTAVO REYES-CEJA ,
Defendant-Appellant.
OPINION

Appeal from the United States District Court
for the Central District of California
Otis D. Wright, II, District Judge, Presiding
Argued and Submitted
April 10, 2012—Pasadena, California
Filed April 1, 2013
Before: Andrew J. Kleinfeld, Richard A. Paez,*
and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Kleinfeld

*
The original panel, consisting of Judge B. Fletcher, Judge Kleinfeld,
and Judge M. Smith, heard oral argument on April 10, 2012. Judge B.
Fletcher died on October 22, 2012, while the decision was pending, and
Judge Paez was drawn to replace her. Judge Paez has read the briefs,
reviewed the record, and listened to the tape of oral argument.

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UNITED STATES V . REYES-CEJA
SUMMARY**

Criminal Law
Affirming a sentence, the panel joined the Fifth, Tenth,
and Eleventh Circuits and held that the Sentencing Guidelines
enhancement for being under a criminal justice sentence,
U.S.S.G. § 4A1.1(d), may be applied to a deportee “found
in” the United States in violation of 8 U.S.C. § 1326 while he
was imprisoned.

COUNSEL
Jonathan D. Libby, Deputy Federal Public Defender, Los
Angeles, California, for Appellant.
David L. Kirman, Assistant United States Attorney, Los
Angeles, California, for Appellee.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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OPINION
KLEINFELD, Senior Circuit Judge:
We address whether the Sentencing Guidelines
enhancement for being under a criminal justice sentence1 may
be applied to a deportee “found in” the United States in
violation of 8 U.S.C. § 13262 while he was imprisoned.
I. Facts.
Gustavo Reyes-Ceja, an alien, has repeatedly entered the
United States, committed crimes, been deported, and
surreptitiously entered again. He was convicted of voluntary
manslaughter and assault with a firearm, deported after

1

U.S.S.G. § 4A1.1(d) (“Add 2 points if the defendant committed the
instant offense while under any criminal justice sentence, including
probation, parole, supervised release, imprisonment, work release, or
escape status.”).
2

8 U.S.C. § 1326 (“[A]ny alien who — (1) has been denied admission,
excluded, deported, or removed or has departed the United States while an
order of exclusion, deportation, or removal is outstanding, and thereafter
(2) enters, attempts to enter, or is at any time found in, the United States,
unless (A) prior to his reembarkation at a place outside the United States
or his application for admission from foreign contiguous territory, the
Attorney General has expressly consented to such alien’s reapplying for
admission; or (B) with respect to an alien previously denied admission and
removed, unless such alien shall establish that he was not required to
obtain such advance consent under this chapter or any prior Act, shall be
fined under title 18, or imprisoned not more than 2 years, or both.”)
(emphasis added).

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serving time, returned surreptitiously, convicted of
committing a lewd act upon a child, deported after serving
time, returned surreptitiously, convicted of petty theft,
deported, returned surreptitiously; was deported again,
returned again, and was convicted of grand theft. He began
serving a 32-month sentence for the grand theft conviction in
2007. He was still serving that sentence about two years later
when the Bureau of Immigration and Customs Enforcement
(ICE) became aware that he was once again in the United
States.
Reyes-Ceja pleaded guilty in federal court, pursuant to a
plea agreement, to an information charging that he was
“found in” the United States on or about November 25, 2009,
after he had been previously deported.3 In his plea agreement

3

The information in full states:
On or about November 25, 2009, defendant Gustavo
Reyes-Ceja, an alien, who had been officially deported
and removed from the United States on or about May
11, 1989, September 26, 1992, September 26, 2000 and
again on May 3, 2002, was found in Riverside County,
within the Central District of California, after
knowingly and voluntarily re-entering and remaining in
the United States without having obtained permission
from the Attorney General or his designated successor,
the Secretary of Homeland Security, to reapply for
admission to the United States following deportation
and removal.
At least one of the defendant’s previously alleged
deportation and removals from the United States
occurred subsequent to defendant’s convictions for one
or more of the following aggravated felonies: 1)
Voluntary M anslaughter, in violation of California
Penal Code Section 192.1 and Assault with Firearm, in

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he stipulated to being a citizen of Mexico, not the United
States, and to having “knowingly and voluntarily re-entered
and thereafter remained in the United States” on or about
March 15, 2004, subsequent to his most recent removal,
without the consent of the Attorney General or the Secretary
of Homeland Security. He also stipulated that “immigration
authorities found” him in Riverside County, California on or
about November 25, 2009. It is undisputed that at that time,
he was in a state correctional facility in Riverside County and
had been for about two years, and that ICE “found” him in
the United States more than five years after he illegally reentered.
At sentencing, Reyes-Ceja’s criminal history computation
was increased by two points because he committed the
“found in” offense “while under” his California grand theft
sentence.4 Reyes-Ceja preserved his objection to this
enhancement, and has consistently argued that a “found in”
sentence ought not to be enhanced if presence in the United
States is involuntary, and that, for sentencing purposes, his
“found in” crime should be treated as completed when he was
“found” by California authorities in 2007. Reyes-Ceja was

violation of California Penal Code Section 245(a)(2),
on or about March 30, 1984, in the Superior Court of
California, for the County of Los Angeles, Case
Number A906876; and 2) Lewd Act Upon a Child, in
violation of California Penal Code Section 288(a), on or
about March 6, 1991, in the Superior Court of
California, for the County of Los Angeles, Case
Number YA004472, all of which are crimes of violence
for which the terms of imprisonment imposed were at
least one year.
4

U.S.S.G. § 4A1.1(d).

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sentenced to 37 months imprisonment on his “found in”
conviction, the bottom end of the Sentencing Guidelines
range for his offense.5 Without the two-point enhancement
to his criminal history score, the applicable Guidelines range
would have been 30–37 months instead of 37–46 months.6
II. Analysis.
This is a sentence appeal.7 The only issue is whether ICE
finding someone in penal custody suffices for a “while under
any criminal justice sentence”8 enhancement to criminal

5

Reyes-Ceja has been sentenced twice. The district court first sentenced
him to 37 months, three years of supervised release, and a $100 special
assessment. He appealed, and the government conceded error, because the
district court had not verified that he had read his presentence report and
discussed it with his attorney. On remand he got the same sentence.
6

U.S.S.G. Ch. 5, pt. A (Sentencing Table) (2010).

7

W e have jurisdiction under 18 U.S.C. § 3742(a).

8

U.S.S.G. Ch. 4, pt. A (Criminal History):
The Comprehensive Crime Control Act sets forth four
purposes of sentencing. (See 18 U.S.C. § 3553(a)(2).)
A defendant’s record of past criminal conduct is
directly relevant to those purposes. A defendant with a
record of prior criminal behavior is more culpable than
a first offender and thus deserving of greater
punishment. General deterrence of criminal conduct
dictates that a clear message be sent to society that
repeated criminal behavior will aggravate the need for
punishment with each recurrence. To protect the public
from further crimes of the particular defendant, the
likelihood of recidivism and future criminal behavior
must be considered. Repeated criminal behavior is an

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history, when the individual had been confined by state
authorities some time earlier and was not free to depart the
United States on or about the date specified in the federal
“found in” charge.9 The issue is purely one of law –

indicator of a limited likelihood of successful
rehabilitation.
The specific factors included in § 4A1.1 . . . are
consistent with the extant empirical research assessing
correlates of recidivism and patterns of career criminal
behavior. W hile empirical research has shown that
other factors are correlated highly with the likelihood of
recidivism, e.g., age and drug abuse, for policy reasons
they were not included here at this time. The
Commission has made no definitive judgment as to the
reliability of the existing data. However, the
Commission will review additional data insofar as they
become available in the future.
§ 4A1.1. Criminal History Category
The total points from subsections (a) through (e)
determine the criminal history category in the
Sentencing Table in Chapter Five, Part A.
...
(d) Add 2 points if the defendant committed the instant
offense while under any criminal justice sentence,
including probation, parole, supervised release,
imprisonment, work release, or escape status.
9

8 U.S.C. § 1326 (“[A]ny alien who (1) has been denied admission,
excluded, deported, or removed . . . and thereafter (2) enters, attempts to
enter, or is at any time found in, the United States . . . shall be fined under
title 18, or imprisoned not more than 2 years, or both.”).

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interpretation of the applicable Sentencing Guidelines
subsection – so we review de novo.10
Reyes-Ceja argues that for sentencing purposes his
“found in” offense should be treated as having ended when he
was discovered by California authorities. He says that if we
treat his “found in” offense as continuing until he was
discovered by ICE, then the two-point enhancement results
not from what he did, sneaking back into the United States in
2004, but from what ICE did, learn of his presence in 2009.
He committed no relevant voluntary act at the time ICE found
him. When he was in custody in Riverside County, he no
doubt would have preferred to be free in Mexico, so his
presence in the Riverside correctional facility was
involuntary.
Reyes-Ceja argues that the purpose of the “while under”
enhancement is to measure culpability and deter recidivism,
and that there is nothing to deter if at the time of the charged
offense the person cannot by any conduct of his own avoid
commission of the crime. In November 2009, the date he was
“found in” the United States, there was no way for him to
avoid committing the crime, since he was imprisoned and
unable to leave the United States. He also argues that the
enhancement cannot properly deter or measure culpability
because whether or not it applies is a matter of chance; had
ICE found him after he committed the grand theft but before
he was convicted and sentenced for it, he would not have
suffered the enhancement.

10

United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir. 2006).

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We have not decided whether a “while under”
enhancement may be applied to a “found in” offense on a
date when the offender is imprisoned and cannot leave the
United States, though we have decided related questions.
“We repeatedly have held that the crime of being found in the
United States after deportation is a continuing offense which
continues so long as the alien remains in the country. That
is, the offense commences with the illegal entry, but is not
completed until discovery.”11 However, we have never so
held in a sentencing enhancement case where the offender
was confined at the relevant time. We do so now, concluding
that the general principle is properly applied to a confined
offender.
Though we have not yet addressed whether the “while
under” enhancement applies when ICE “found” the alien
when he was in prison and unable to depart, the Fifth,12
Tenth,13 and Eleventh Circuits14 have.15 The Fifth Circuit
holds that “a ‘found-in’ violation is a continuing violation
until the date the alien is discovered by immigration
authorities,” and so a defendant “committed all or part of that
11

United States v. Garcia-Jimenez, 623 F.3d 936, 940 (9th Cir. 2010)
(quoting United States v. Reyes-Pacheco, 248 F.3d 942, 946 (9th Cir.
2001)) (emphasis in the original).
12

13

United States v. Santana-Castellano, 74 F.3d 593 (5th Cir. 1996).
United States v. Hernandez-Noriega, 544 F.3d 1141 (10th Cir. 2008).

14

15

United States v. Coeur, 196 F.3d 1344 (11th Cir. 1999).

The First Circuit, on plain error review, has also held that a “while
under” enhancement applies to a defendant serving a state prison sentence
when found by immigration authorities. United States v. Figuereo,
404 F.3d 537 (1st Cir. 2005).

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violation on the date he was discovered [by immigration
authorities] while imprisoned on the state offense.”16 The
Eleventh Circuit has adopted the Fifth Circuit’s reasoning.17
The Tenth Circuit holds that “[a]lthough the act of returning
to the United States must be voluntary, it is not relevant
whether an alien’s continued presence in the United States
was voluntary at the moment of discovery.”18 None of our
cases compel a contrary result, thus we join our sister circuits.
Reyes-Ceja argues that United States v. Jimenez-Borja19
stands for the proposition that an alien is “found in” the
United States when he is found by local authorities. That
case is distinguishable. Jimenez-Borja’s indictment charged
him with being “found in” the United States on the date he
was discovered by local police. We held that an alien can be
“found in” the United States when found by local police, but
reasoned that “[t]he crime of being ‘found in’ is a continuing
offense. . . . Thus, Jimenez-Borja could have been charged
with having been ‘found in’ the United States . . . when he
was found . . . by local police (as he was), or . . . when he was
discovered by the INS, or on any date in between . . . .”20
Reyes-Ceja also cites United States v. Hernandez21 for the
proposition that an alien cannot be successively “found ” by

16

Santana-Castellano, 74 F.3d at 598.

17

Coeur, 196 F.3d at 1346.

18

Hernandez-Noriega, 544 F.3d at 1143 (quotation omitted).

19

United States v. Jimenez-Borja, 378 F.3d 853 (9th Cir. 2004).

20

Id. at 857–58 (citation omitted).

21

United States v. Hernandez, 189 F.3d 785 (9th Cir. 1999).

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different authorities at different times. However, that case
merely held that a defendant cannot be successively found by
federal immigration authorities, because “[t]he INS’s act of
discovering or finding the defendant completes the offense.”22
We reject Reyes-Ceja’s argument that his “while under”
enhancement is improper because it depends upon the State
of California’s and ICE’s actions, not upon his. Were the
statutory language “is at any time found in[] the United
States” considered without regard to the words preceding it,
a serious question would arise. Taken in isolation, the phrase
might seem to criminalize involuntary conduct.
The language preceding “is at any time found in,” though,
avoids the problem of an involuntary crime or status offense.
The statute says “enters, attempts to enter, or is at any time
found in, the United States.”23 Even though the deported
alien can no longer depart once he is imprisoned, “[a]
conviction under § 1326 for being ‘found in’ the United
States necessarily requires that a defendant commit an act: he
must re-enter the United States without permission within
five years after being deported.”24 And to be convicted of a
“found in” offense, a defendant must voluntarily return to the
United States or voluntarily remain after an involuntary

22

Id. at 790.

23
8 U.S.C. § 1326 (“[A]ny alien who (1) has been denied admission,
excluded, deported, or removed . . . and thereafter (2) enters, attempts to
enter, or is at any time found in, the United States . . . shall be fined under
title 18, or imprisoned not more than 2 years, or both.”).

24

United States v. Ayala, 35 F.3d 423, 426 (9th Cir. 1994).

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entry.25 Had Reyes-Ceja accidentally wandered across the
border while drunk, or been kidnapped and taken across the
border against his will, a different question would need to be
answered.26 But he voluntarily reentered the country after
deportation, and one cannot be “found in” without having
entered. The entry, not the being “found in,” is the voluntary
conduct.
Reyes-Ceja argues that we should follow the reasoning of
United States v. Pacheco-Medina,27 and hold that “physical
presence is not enough” for a “found in” offense, where an
alien “lack[ed] the freedom to go at large and mix with the
population.”28 We distinguish Pacheco-Medina because in
that case the alien never succeeded in re-entering when he
was caught scaling the border fence. We held in PachecoMedina that an entry was required before a deported alien
could be “found in,”29 but here Reyes-Ceja succeeded in
reentering. It is not any custody that prevents completion of
a “found in” crime under Pacheco-Medina, only custody that
keeps the alien from successfully re-entering.

25

United States v. Quintana-Torres, 235 F.3d 1197, 1200 (9th Cir.
2000); see also United States v. Salazar-Robles, 207 F.3d 648, 650 (9th
Cir. 2000) (“‘Being found’ is an element of the offense; but it is a passive
state, not requiring proof of a voluntary act. The voluntary element
consisted in [the defendant’s] return.”).
26
See United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1195 (9th Cir.
2000) (en banc); see also Quintana-Torres, 235 F.3d at 1200.

27

United States v. Pacheco-Medina, 212 F.3d 1162 (9th Cir. 2000).

28

Id. at 1163–64 (quotation omitted).

29

Id. at 1165–66.

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We also reject Reyes-Ceja’s argument that the “while
under” enhancement’s purpose of deterring recidivism and
measuring culpability is not met when an alien is “found in”
prison. The purpose of criminalizing “enters, attempts to
enter, or is at any time found in” is to deter reentry without
permission by a deported alien. The purpose of criminalizing
the passive occurrence of being “found in” is to prevent the
five year statute of limitations30 from barring prosecution of
a deported alien who surreptitiously reenters and successfully
avoids discovery for the limitations period. We reasoned
similarly in a venue decision, United States v. Hernandez:31
the immigration authorities’ discovery of the deported alien
in the United States “completes” the “found in” offense, for
venue as well as statute of limitations and guidelines
purposes.32
Though Reyes-Ceja could not avoid being “found in” the
United States while he was incarcerated, he could have
avoided committing the “found in” crime by not re-entering.
As for the possibility that he might have avoided the
enhancement had he been reported to ICE when he was
arrested but before he was convicted for his grand theft, his

30

18 U.S.C. § 3282(a) (“Except as otherwise expressly provided by law,
no person shall be prosecuted, tried, or punished for any offense, not
capital, unless the indictment is found or the information is instituted
within five years next after such offense shall have been committed.”).
31

Hernandez, 189 F.3d 785.

32
Id. at 790–91 (“The offense of being found in the United States ends
when an alien is discovered and identified by the immigration authorities.
W e conclude that the crime is completed at that point not only for statute
of limitations and Sentencing Guidelines purposes, but also for venue.”);
see also Jimenez-Borja, 378 F.3d at 857–58.

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criminality would not have been any the less. He was not
supposed to come back, and he was not supposed to commit
grand theft. He voluntarily took the risk of a “while under”
enhancement by committing the grand theft after his illegal
reentry.
One reason why 8 U.S.C. § 1326 has given rise to so
many cases is because it defines a crime in part by what the
government does (find an alien who has reentered the United
States without permission) instead of solely by what the
criminal does. Criminal statutes ordinarily address the
criminal’s conduct (“if a person does X, he shall be
punished”), not the government’s conduct. In context,
though, it is the alien’s act of reentering without permission,
and not ICE’s act of discovering him, that constitutes the
criminal conduct. ICE’s discovery of an alien merely
completes his crime and starts the statute of limitations
running. Section 1326’s phrasing allows the government to
prosecute deported aliens who have surreptitiously reentered
and evaded detection for more than five years, while at the
same time preventing ICE from finding an alien and then
waiting for more than five years to prosecute him. ICE ends
the crime, but does not generate it. The alien generates the
crime through his voluntary act of reentry after having been
deported.
AFFIRMED.

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