United States v. Sergio Mendoza , 411 F. App'x 55 ( 2011 )

FILED
NOT FOR PUBLICATION JAN 20 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50606
Plaintiff - Appellee, D.C. No. 2:09-cr-00755-ODW
v.
MEMORANDUM *
SERGIO VILLANUEVA MENDOZA,
a.k.a. Sergio Macias,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Submitted January 10, 2011 **
Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.
Sergio Villanueva Mendoza appeals from the 51-month sentence imposed
following his guilty-plea conviction for being an illegal alien found in the United
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
Mendoza contends that the district court plainly erred in determining that he
should receive two criminal history points pursuant to U.S.S.G. § 4A1.1(d) for
committing the instant offense while serving a criminal justice sentence.
According to Mendoza, because he was in prison for another offense and unable to
leave the country when he was found by immigration officials, the commission of
the section 1326 offense was beyond his control and he is improperly being further
punished solely for his status rather than for committing a new crime.
The district court did not plainly err. A “found in” offense is a continuing
offense that begins when the defendant reenters the country and continues until
discovery by immigration officials. See United States v. Reyes-Pacheco, 248 F.3d
942, 946 (9th Cir. 2001). Mendoza was not required to be voluntarily in the
country at the time he was found; it was sufficient that he reentered the country
voluntarily. See United States v. Ortiz-Villegas, 49 F.3d 1435, 1437 (9th Cir.
1995) (“We also reject Ortiz-Villegas’ argument that he did not have the required
intent to be ‘found in’ the United States because he was involuntarily incarcerated
within United States’ borders at the time he was located.”). In addition, Mendoza’s
inability to leave the country and avoid being found was due to his own voluntary
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conduct in committing another crime. See id. at 1437 n.2. He therefore committed
the instant offense while under a criminal justice sentence. See U.S.S.G. §
4A1.1(d).
AFFIRMED.
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