United States v. Hoenes-De La Cruz , 114 F. App'x 524 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 04-4165
VICTOR WALDEMAR HOENES-DE LA
CRUZ,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, Chief District Judge.
(CR-03-102)
Submitted: September 1, 2004
Decided: September 20, 2004
Before NIEMEYER and LUTTIG, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Randy V. Cargill, MAGEE, FOSTER, GOLDSTEIN & SAYERS,
P.C., Roanoke, Virginia, for Appellant. John L. Brownlee, United
States Attorney, Jennie L. M. Waering, Assistant United States Attor-
ney, Roanoke, Virginia, for Appellee.
2 UNITED STATES v. HOENES-DE LA CRUZ
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Victor Waldemar Hoenes-De La Cruz, a citizen of Guatemala, was
most recently deported in 1991. In July 2000, Hoenes-De La Cruz
was convicted of credit card theft and statutory burglary in Fairfax,
Virginia, and sentenced to four years incarceration. He was subse-
quently charged with being found in the United States on October 5,
2001, in the correctional facility at Staunton, Virginia, without having
requested or received permission to reenter the country. Hoenes-De
La Cruz pled guilty to this federal offense in December 2003. He was
sentenced to a term of fifty months imprisonment and appeals his sen-
tence, contending that the district court erred in computing his crimi-
nal history. U.S. Sentencing Guidelines Manual §§ 4A1.1, 4A1.2
(2003). We affirm.
In the district court, Hoenes-De La Cruz objected unsuccessfully to
the assignment of three criminal history points for his 1983 sentence
of four years imprisonment for burglary and two points for his 1990
sentence of one year in jail and three years probation for sale or trans-
portation of a controlled substance. He argued that the 1983 sentence
was imposed more than fifteen years before he commenced the instant
offense and the 1990 sentence was imposed more than ten years
before he commenced the instant offense, and thus, in his view, both
sentences were outside the applicable time periods set out in
§ 4A1.2(e)(1) and (2).* He asserted that the instant offense was com-
mitted on October 5, 2001, the date in the indictment. He argued that,
*Guideline § 4A1.2(e) (1)-(2) provides that any prior sentence of
imprisonment over a year and a month is counted if it was imposed
within fifteen years of the commencement of the instant offense or
resulted in the defendant being confined within any part of the fifteen-
year period. Any other sentence is counted if it was imposed within ten
years of the commencement of the instant offense.
UNITED STATES v. HOENES-DE LA CRUZ 3
if he committed the instant offense in 1991 when he reentered the
country illegally, the five-year statute of limitations would have run
by October 5, 2001, the date charged in the indictment. Hoenes-De
La Cruz also contested the two criminal history points assigned to
him under § 4A1.1(d) for having committed the instant offense while
under a sentence of probation, and the additional point assessed under
§ 4A1.1(e) for having committed the instant offense less than a year
after his release from confinement in April 1991. He argued that crim-
inal history points could not be assessed under § 4A1.1(d) or (e)
because those subsections state that the defendant must have "com-
mitted the instant offense" while under a criminal justice sentence or
less than two years after his release from custody, rather than refer-
ring to "commencement of the instant offense," as § 4A1.2(e) does.
The district court determined that all eight contested criminal his-
tory points were correctly assigned. Because the court’s ruling was
based on undisputed facts, it is a legal ruling subject to de novo
review. United States v. Butner, 277 F.3d 481, 488 (4th Cir.), cert.
denied, 536 U.S. 932 (2002).
An alien may violate 8 U.S.C. § 1326(a) by unlawfully (1) enter-
ing, (2) attempting to enter, or (3) being "found" in the United States.
United States v. Mercedes, 287 F.3d 47, 54 (2d Cir.), cert. denied, 537
U.S. 900 (2002); see also United States v. Mendez-Cruz, 329 F.3d
885, 889 (D.C. Cir. 2003) (§ 1326(a) creates three distinct offenses)
(citing United States v. Pacheco-Medina, 212 F.3d 1162, 1165 (9th
Cir. 2000)). The statute of limitations begins to run when the offense
is complete. Mercedes, 287 F.3d at 54. Although the offense of illegal
reentry may be complete when it occurs, when the entry is surrepti-
tious, the "found in" offense "‘is first committed at the time of the
reentry and continues to the time when the defendant is arrested for
the offense.’" United States v. Ruiz-Gea, 340 F.3d 1181, 1189 (10th
Cir. 2003) (quoting United States v. Lopez-Flores, 275 F.3d 661, 663
(7th Cir. 2001)). In light of these decisions, we are persuaded that the
district court did not err in deciding that Hoenes-De La Cruz initiated
the instant offense when he unlawfully reentered the United States in
1991 and that criminal history points were correctly awarded for the
sentences he received in 1983 and 1990.
Application Notes 4 and 5 to § 4A1.1 state that criminal history
points should be added under subsections (d) and (e) "if the defendant
4 UNITED STATES v. HOENES-DE LA CRUZ
committed any part of the instant offense (i.e., any relevant conduct)"
while under a criminal justice sentence or less than two years after
release from confinement. When a defendant has been convicted of
being found in the United States after deportation, unlawful reentry
is relevant conduct; it is 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." Mendez-Cruz, 329
F.3d at 889. As before, the district court correctly determined that
Hoenes-De La Cruz initiated the instant offense when he unlawfully
reentered the United States in 1991 and criminal history points were
properly assigned under § 4A1.1(d) and (e).
Accordingly, we affirm the sentence imposed by the district court.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED