United States v. Andres Onofre-Blanco

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 8, 2005
• Docket: 05-10702
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT September 8, 2005 No. 05-10702 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________

D. C. Docket No. 04-60263-CR-WPD

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANDRES ONOFRE-BLANCO,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida _________________________ (September 8, 2005)

Before TJOFLAT, ANDERSON and HULL, Circuit Judges.

PER CURIAM:

Andres Onofre-Blanco, a Mexican national, appeals his 46-month sentence he received for being an alien found in the United States after having been

removed, in violation of 8 U.S.C. § 1326(a). After review, we affirm.

I. BACKGROUND

The facts of this case are not in dispute. Onofre-Blanco was first convicted

in 1999 of illegally transporting aliens. He was sentenced to 10 months’

imprisonment and three years’ supervised release. After serving his term of

imprisonment, he was released and removed to Mexico on June 9, 2000.1 His

supervised release term expired on June 8, 2003.

Onofre-Blanco re-entered the United States illegally in March 2001.

According to the indictment, Onofre-Blanco was found in the United States on

September 16, 2004. On November 18, 2004, Onofre-Blanco pled guilty to one

count of being an alien “found to be in the United States” without permission, and

after being deported, in violation of 8 U.S.C. § 1326.

After Onofre-Blanco’s guilty plea, the probation officer prepared a

Presentence Investigation Report (“PSI”) that calculated Onofre-Blanco’s

Sentencing Guidelines range to be 46-57 months’ imprisonment. This range was

based upon a base offense level of 21 and a criminal history category of III. In

calculating the criminal history category, the probation officer assessed a two-point

1 It appears from the PSI that Onofre-Blanco was removed to Mexico on the same day that he was released from prison.

-2- increase, pursuant to U.S.S.G § 4A1.1(d), because the instant offense was

committed in 2001, while Onofre-Blanco was on supervised release from June 9,

2000, to June 8, 2003. This two-point increase raised Ononfre-Blanco’s criminal

history category from II to III.2

At the January 27, 2005 sentencing hearing, Onofre-Blanco objected to the

two-point assessment under U.S.S.G. § 4A1.1(d), arguing that the offense of being

“found in” the United States was not completed until September 16, 2004, after his

term of supervised release had expired. The district court rejected that argument

and calculated Onofre-Blanco’s Guidelines range as 46-57 months’ imprisonment

as stated in the PSI. The district court ultimately sentenced Onofre-Blanco to 46

months’ imprisonment, three years of supervised release and a $100 “Special

Assessment.” 3 Onofre-Blanco timely appealed this sentence.

II. DISCUSSION

Onofre-Blanco presses a single issue on appeal: whether the district court

2 Onofre-Blanco was assigned two criminal history points for his 1999 conviction for illegally transporting aliens. See U.S.S.G. § 4A1.1(b). Two additional criminal history points were added because Onofre-Blanco committed the instant offense while on supervised release. See id. at § 4A1.1(d). Two criminal history points would place a defendant in criminal history category II, whereas four criminal history points place a defendant in criminal history category III. See id. at Ch. 5, pt. A. 3 This sentencing hearing took place after the Supreme Court’s decision in United States v. Booker, 125 S. Ct. 738 (2005). Onofre-Blanco made arguments in the district court based on Booker, and the district court stated that it was applying the Guidelines in an advisory manner. Onofre-Blanco does not argue that there was any Booker error in this case.

-3- erred in assessing two criminal history points under § 4A1.1(d) based upon the

offense being committed while Onofre-Blanco was on supervised release. We

conclude that there was no error.4

The relevant Guidelines provision states that two points should be added to a

defendant’s criminal history score “if the defendant committed the instant offense

while under any criminal justice sentence, including . . . supervised release. . . .”

U.S.S.G. § 4A1.1(d). The commentary to that Guideline section states that the

section applies “if the defendant committed any part of the instant offense (i.e., any

relevant conduct) while under any criminal justice sentence.” Id., cmt. n.4

(emphasis added).

Our decisions state that the crime of being “found in” the United States in

violation of 8 U.S.C. § 1326 “commences when the alien enters the United States

and is not completed until the defendant’s arrest.” United States v. Coeur, 196 F.3d

1344, 1346 (11th Cir. 1999); United States v. Castrillon-Gonzalez, 77 F.3d 403,

406 (11th Cir. 1996).

In this case, it is undisputed that Onofre-Blanco’s supervised release expired

4 With respect to the Sentencing Guidelines, we review the district court’s findings of fact for clear error, and conclusions of law de novo. United States v. Crawford, 407 F.3d 1174, 1177-78 (11th Cir. 2005). In addition, even after the Supreme Court’s decision in Booker, this Court still must review the district court’s Guidelines calculations to determine if the district court properly considered the Guidelines as required under Booker. See id. at 1178.

-4- on June 8, 2003, and that Onofre-Blanco entered the United States and began

living here illegally in March of 2001. Thus, Onofre-Blanco’s crime “commenced”

while he was on supervised release. Because U.S.S.G. § 4A1.1(d) applies if “any

part” of the offense occurs while the defendant is on supervised release, the district

court did not err in assessing the two criminal history points in issue. Accordingly,

we affirm Onofre-Blanco’s 46-month sentence.

AFFIRMED.

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