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

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ 12/02/99
THOMAS K. KAHN
No. 98-5711 CLERK
Non-Argument Calendar
________________________
D.C. Docket No. 98-00324-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSNEL COEUR,
a.k.a. Steve Coeur,
a.k.a. Antonio Gray,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(December 2, 1999)
Before EDMONDSON, CARNES and HULL, Circuit Judges.
PER CURIAM:
Osnel Coeur, after having been deported was "found to be in the United
States," in violation of 8 U.S.C. § 1326(a). He appeals his sentence, contending
that the district court improperly increased his criminal history points under
U.S.S.G. § 4A1.1(d) after concluding that he committed the § 1326(a) crime while
serving another sentence. The sentence he was serving at the time the INS found
Coeur in this country was one he received after he had entered illegally, which was
also in violation of § 1326(a). Because the specific § 1326(a) crime Coeur was
convicted of is the crime of being "found in" the United States after having been
deported, and the INS found him in this country while he was serving another
sentence, we conclude that the district court did not err in applying § 4A1.1(d) of
the Guidelines.
I.
In 1994, Coeur was deported from the United States after having been
convicted of several misdemeanors and felonies, including armed robbery. He re-
entered this country without permission in September or October of 1997. On
October 29, 1997, Coeur was arrested and later convicted for possession of cocaine
and resisting an officer without violence, and he was sentenced to 90 days in the
Dade County jail. In early April 1998, while Coeur was serving that sentence, INS
officials were alerted to his presence in the jail. As a result, a grand jury returned
2
an indictment against Coeur, charging that he was "found to be in the United
States" without the consent of the Attorney General in violation of 8 U.S.C. §
1326(a), (b)(2). Coeur entered a plea of guilty to the indictment.
At the sentencing hearing, the district court considered whether Coeur's
criminal history points should be increased under U.S.S.G. § 4A1.1(d) because he
committed the crime for which he was being sentenced while he was serving
another criminal justice sentence. After hearing arguments on the issue by the
parties, the court found the reasoning in United States v. Santana-Castellano, 74
F.3d 593 (5th Cir. 1996), cert. denied, 517 U.S. 1228 (1996), to be persuasive and
assessed two additional criminal history points under § 4A1.1(d).
II.
On appeal, Coeur contends that it was improper for the district court to
assess additional criminal history points against him under § 4A1.1(d). Coeur
argues that he committed the crime for which he was being sentenced when he re-
entered the United States, not when he was discovered in jail three years later by
the INS. Because he was not under a criminal justice sentence on the date he re-
entered the United States, Coeur contends that § 4A1.1(d) is inapplicable to the
facts of his case. To hold otherwise, Coeur argues, would yield an "absurd" result
and would go against our admonition in United States v. Rolande-Gabriel, 938
3
F.2d 1231 (11th Cir. 1991), that sentencing courts should not interpret guideline
provisions in a "hyper-technical and mechanical" manner. The government
counters that because Coeur entered a plea of guilty for being "found in" the
United States, a crime which was not completed until the INS discovered him, the
date of his re-entry is irrelevant and an enhancement under § 4A1.1(d) was proper
because he was actually under a criminal justice sentence when he was found by
the INS.
III.
Section 1326(a) provides for the imprisonment of an alien who had
previously been deported and who "enters, attempts to enter, or is at any time
found in, the United States..." 8 U.S.C. § 1326(a). In United States v. Canals-
Jimenez, 943 F.2d 1284, 1287 (11th Cir. 1991), we held that "enters" must have a
different meaning from being "found in." We concluded that the term "found in"
refers to situations in which an alien is discovered in the United States after already
having entered the country. See id. at 1288. In another case, we held that the
crime of being "found in" the United States commences when the alien enters the
United States and is not completed until the defendant's arrest. See United States
v. Castrillon-Gonzalez, 77 F.3d 403, 406 (11th Cir. 1996). Coeur entered a plea of
guilty to a grand jury indictment charging him with being "found in" the United
4
States on April 16, 1998. On that date, when he was found in this country, Coeur
was serving another criminal justice sentence.
The guidelines provide for a two-point increase in the defendant's criminal
history score "if the defendant committed the instant offense while under any
criminal justice sentence...." U.S.S.G. § 4A1.1(d). This enhancement applies "if
the defendant committed any part of the instant offense (i.e., any relevant conduct)
while under any criminal justice sentence." U.S.S.G. § 4A1.1(d), commentary at
n.4. Because Coeur was in jail on the date he committed the offense of being
"found in" the United States, it was proper for the district court to assess two
criminal history points against Coeur under § 4A1.1(d).
Coeur's argument that his re-entry offense was committed when he first re-
entered the United States ignores the specifics of the charge to which he pled
guilty. We have held that when a defendant enters a plea of guilty to being "found
in" the United States on a certain date, the issue of when the offense was
committed is settled, and the defendant may not later dispute that date. See United
States v. Palacios-Casquete, 55 F.3d 557, 559 (11th Cir. 1995), cert. denied, 516
U.S. 1120 (1996). Thus, in light of his plea and our circuit law, Coeur committed
the offense while he was under a criminal justice sentence and, therefore, §
4A1.1(d) is applicable.
5
While we have not previously issued a decision on whether § 4A1.1(d) is
applicable to the § 1326 offense of being "found in" the United States, the Fifth
Circuit has in a case factually similar to the present one. In Santana-Castellano,
several years after being deported the defendant was arrested in the United States
for an offense for which he was later convicted and sentenced. See 74 F.3d at 595.
While he was serving this sentence, the INS discovered that he had previously been
deported, and as a result he was charged with violating 8 U.S.C. § 1326, an offense
to which he later pled guilty. See id. at 595-96. At sentencing, the court assessed
two criminal history points against the defendant pursuant to § 4A1.1(d) for having
committed his offense while serving a state prison sentence. See id. at 596. On
appeal, the Fifth Circuit held that because "a previously deported alien is 'found in'
the United States when his physical presence is discovered and noted by the
immigration authorities," the defendant committed the § 1326 offense on the date
he was discovered while imprisoned for the state offense, and thus the district court
did not err in applying § 4A1.1(d). See id. at 598. We agree with the reasoning
and holding in Santana-Castellano.
IV.
AFFIRMED.
6