Appellate Case: 23-5057 Document: 010110997097 Date Filed: 02/08/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 8, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-5057 (D.C. No. 4:23-CR-00083-GKF-1) JOSE ARTURO SOLIS COBOS, a/k/a (N.D. Okla.) Arturo Solis Herrera, a/k/a Juan Jose Darillos-Torres, a/k/a Arturo Solis Torres, a/k/a Herrera Arturo Solis, a/k/a Arturo Darillos Torres, a/k/a Jose Solis Cobos, a/k/a Arturo Torres Solis, a/k/a Eddie Solis, a/k/a Arturo Solis-Cobos, a/k/a Arturo Solis Cobos, a/k/a Rene Solis-Torres, a/k/a Arturo Soliz, a/k/a Solis Herrer, a/k/a Jose Torres-Torres,
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before McHUGH, EID, and ROSSMAN, Circuit Judges. _________________________________
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. Appellate Case: 23-5057 Document: 010110997097 Date Filed: 02/08/2024 Page: 2
Jose Arturo Solis Cobos was convicted of unlawful reentry under 8 U.S.C. § 1326
and sentenced to 18 months’ imprisonment with three years of supervised release.
Relying on the Presentence Investigation Report (“PSR”), the district court calculated
Mr. Cobos’s criminal history category as IV based on criminal convictions, including
convictions in 2004 and 2009. The PSR factored those prior convictions into his criminal
history because both were within ten years of Mr. Cobos’s undisputed reentry into the
United States in 2012.
On appeal, Mr. Cobos challenges the district court’s calculation of his criminal
history score. He contends the district court erred by not requiring the Government to
prove by a preponderance of the evidence that Mr. Cobos was continuously present in the
United States between his reentry in 2012 and his apprehension in 2023 before the court
factored Mr. Cobos’s 2004 and 2009 convictions into his criminal history score.
Mr. Cobos relies on Ninth Circuit precedent to support his argument that the Government
must prove his continuous presence in the United States.
We hold that the district court did not err when it calculated Mr. Cobos’s criminal
history category. We are not bound by the Ninth Circuit’s test, and the Government met
its burden under our precedent when it provided evidence that Mr. Cobos illegally
reentered the country in 2012 and was apprehended in 2023. Further, even if we were to
apply the Ninth Circuit standard, the Government proved by a preponderance of the
evidence that Mr. Cobos was continuously present in the United States since his reentry
in 2012. We therefore affirm the district court.
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I. BACKGROUND
Mr. Cobos, a citizen of Honduras, was arrested for unlawful reentry in 2023. Prior
to his arrest, Mr. Cobos illegally entered the United States at least six times and was
removed from the country in 1996, 2003, 2004, 2005, 2008, and 2010. After Mr. Cobos
was arrested in 2023, he admitted he had illegally reentered the country in 2012.
Following his arrest, a federal grand jury charged Mr. Cobos with unlawful reentry under
8 U.S.C. § 1326, and Mr. Cobos pleaded guilty to that charge without a plea agreement.
In preparing the PSR, Probation calculated Mr. Cobos’s criminal history score
as 8, placing him in criminal history category IV and an offense level of 10, resulting in a
United States Sentencing Commission Guidelines range of 15 to 21 months. This
calculation was based on Mr. Cobos’s prior criminal convictions in 2004, 2008, 2009,
2014, and 2015. Specifically, in 2004, Mr. Cobos was convicted of entry without
inspection; in 2008, he was convicted of domestic assault and battery and interference
with emergency telephone call; and, in 2009, he was convicted of reentry of deported
alien. Mr. Cobos was also convicted of misdemeanor obstructing an officer and no valid
driver’s license in 2014 and of larceny of merchandise in 2015.
Mr. Cobos objected only to the PSR’s inclusion of his 2004 and 2009 offenses.
Probation assigned two criminal history points to each of those convictions. Without
considering the 2004 and 2009 convictions, Mr. Cobos’s criminal history score would
have been 4, resulting in a criminal history category of III and a Guidelines range of 10 to
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16 months. 1 See United States Sentencing Commission, Guidelines Manual, § 5A (Nov.
2021).
In response to Mr. Cobos’s objection, Probation added an addendum to the PSR
explaining that the two offenses were included in the calculation because both were
within ten years of Mr. Cobos’s illegal reentry in 2012. Mr. Cobos then moved for a
downward departure in his criminal history category, discussing his ties to Oklahoma,
including his employment, his late wife whom he married after his prior conviction in
2015, and his two children born after 2015. Mr. Cobos also filed a sentencing
memorandum and a motion for a downward variance, making similar arguments.
At Mr. Cobos’s hearing, the district court overruled Mr. Cobos’s objection to the
PSR. Mr. Cobos’s counsel moved to reconsider, citing Ninth Circuit precedent requiring
the Government to prove that the defendant has been continuously present in the United
States since reentry. The Government responded that Mr. Cobos had admitted continuous
presence by omission (i.e., by reporting that he had reentered the country in 2012 when
asked) and alternatively, disputed Mr. Cobos’s argument that, by leaving the United
States after 2012 and reentering again, Mr. Cobos would have effectively ended the
Mr. Cobos argues in his appellate brief that, without these two convictions, he 1
would have had a criminal history score of 4, resulting in a criminal history category of II and a recommended sentence of 8 to 14 months. But a criminal history score of 4 corresponds to a criminal history category of III. See U.S.S.G. § 5A. Assuming a base offense level of 10, as reflected in the PSR, Mr. Cobos’s recommended sentence would have instead been 10 to 16 months. Id. Unlike in his appellate brief, Mr. Cobos asserted correctly in his objection to the PSR that he would be in category III and have a recommended sentence of 10 to 16 months without the 2004 and 2009 convictions.
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offense that commenced in 2012. The district court acknowledged the arguments made
by both parties but ultimately denied Mr. Cobos’s motion to reconsider and included his
2004 and 2009 convictions in calculating his criminal history score. The court sentenced
Mr. Cobos to 18 months’ imprisonment followed by three years of supervised release.
II. DISCUSSION
The parties dispute whether the district court should have considered Mr. Cobos’s
2004 and 2009 convictions in calculating his criminal history. Mr. Cobos argues that,
because the Government has not demonstrated he was continuously present in the United
States between 2012 and his arrest in 2023, the Government did not prove the 2004 and
2009 convictions were within the ten-year look-back period in United States Sentencing
Commission Guidelines Manual § 4A1.2(e)(2). Thus, he argues these two convictions
should not have been included in his criminal history score, and his criminal history
category and recommended Guidelines range should have been lower.
Whether there was sufficient support for the district court’s factual findings is a
question of fact reviewed for clear error. United States v. Randall, 472 F.3d 763, 765
(10th Cir. 2006). And whether the Government was required to prove Mr. Cobos’s
continuous presence in the United States between his reentry in 2012 and his 2023 arrest
is a question of law we review de novo. Id. We conclude that the district court did not
clearly err in finding that Mr. Cobos’s offense commenced in 2012, and that we need not
decide whether to adopt a “continuous presence” requirement because even under Ninth
Circuit precedent, the Government met its burden. Thus, the district court properly
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considered the 2004 and 2009 convictions in calculating Mr. Cobos’s criminal history
category as IV.
A. Legal Standard
Under 8 U.S.C. § 1326(a), “any alien who . . . has been . . . deported . . . and
thereafter . . . enters, attempts to enter, or is at any time found in, the United States” shall
be fined or imprisoned in accordance with that section. Thus, a “previously deported
alien who illegally enters and remains in the United States can violate the statute at three
different points in time, namely, when the alien (1) enters, (2) attempts to enter, or (3) is
at any time found in the United States.” United States v. Ruiz-Gea, 340 F.3d 1181, 1189
(10th Cir. 2003) (quotation marks omitted). “[T]he crime of being ‘found’ in the United
States is a continuing offense, and in the case of a surreptitious entry, that crime is first
committed when the defendant voluntarily reenters the country and continues to be
committed until the defendant is ‘found.’” United States v. Villarreal-Ortiz, 553 F.3d
1326, 1330 (10th Cir. 2009); Ruiz-Gea, 340 F.3d at 1189 (“In the case of a surreptitious
reentry . . . , 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.” (quoting United
States v. Lopez-Flores, 275 F.3d 661, 663 (7th Cir. 2001))).
For purposes of calculating a defendant’s criminal history score, the Guidelines
provide that “[a]ny other prior sentence that was imposed within ten years of the
defendant’s commencement of the instant offense is counted.” U.S.S.G. § 4A1.2(e)(2).
Thus, when a defendant has been charged with illegal reentry, the defendant’s prior
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sentences fall within this look-back period if they were imposed within ten years of the
defendant’s reentry into the United States.
We generally impose the burden of proof on the party seeking to increase or
decrease the defendant’s criminal history score. United States v. Kirk, 894 F.2d 1162,
1164 (10th Cir. 1990) (“The government shall bear the burden of proof for sentence
increases and the defendant shall bear the burden of proof for sentence decreases.”); see
also United States v. Torres, 182 F.3d 1156, 1162 (10th Cir. 1999) (“[I]t is generally ‘the
government which [has] the burden of showing whatever facts are needed to justify
adding additional criminal history points.’” (second alteration in original) (quoting
United States v. Nicholas, 133 F.3d 133, 136 (1st Cir. 1998))). This requires a showing
by a preponderance of the evidence. Kirk, 894 F.2d at 1164 (“[T]he sentencing judge
properly required Kirk to prove by a preponderance of evidence that he was entitled to a
point reduction . . . .”); United States v. Hill, 53 F.3d 1151, 1153 (10th Cir. 1995) (“The
government must prove a sentence enhancement by a preponderance of the
evidence . . . .”).
B. The Ninth Circuit’s “Continuous Presence” Requirement
In the Ninth Circuit, if the government seeks to increase a defendant’s sentence
based on the defendant’s criminal history, the government must prove by either a
preponderance of the evidence or clear and convincing evidence that the defendant
reentered the country and was continuously present in the country until the defendant was
found. United States v. Garcia-Jimenez, 623 F.3d 936, 940–41 (9th Cir. 2010); United
States v. Valle, 940 F.3d 473, 479 (9th Cir. 2019). A party can demonstrate “continuous
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presence” by (1) accounting for a major portion of the time between the defendant’s
illegal reentry and the defendant’s apprehension, and (2) providing evidence that the
defendant had no reason to leave the United States. Garcia-Jimenez, 623 F.3d at 941.
The Ninth Circuit, like the Tenth Circuit, generally imposes the burden of proof on
the party seeking an adjustment to the sentence. See id. at 940–41 (“[T]he government
bore the burden of proving Garcia’s continuous presence in the United States since April
20, 2007, by a preponderance of the evidence.”). In the Ninth Circuit, when seeking to
increase a defendant’s sentence based on criminal history, the government’s burden of
proof turns on how disproportionate the increase sought is to the original offense level.
See Valle, 940 F.3d at 479 (“As a general rule, a preponderance of the evidence standard
applies, but the Government must meet a higher standard—proof by ‘clear and
convincing evidence’—in cases where there is ‘an extremely disproportionate impact on
the sentence.’” (quoting United States v. Jordan, 256 F.3d 922, 930 (9th Cir. 2001))).
Courts in the Ninth Circuit have primarily focused on two factors in determining the
proportional impact of the proposed criminal history score on the defendant’s Guidelines
range:
[(1)] whether the increase in the number of offense levels is less than or equal to four; and [(2)] whether the length of the enhanced sentence more than doubles the length of the sentence authorized by the initial sentencing guideline range in a case where the defendant would otherwise have received a relatively short sentence.
Id. (quoting Jordan, 256 F.3d at 928). In United States v. Garcia-Jimenez, for example,
the government was required to demonstrate by a preponderance of the evidence that the
defendant was continuously present to justify the addition of three criminal history points
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and a resulting increase in the defendant’s criminal history category from III to IV. 623
F.3d at 940–41; see Valle, 940 F.3d at 482 n.10 (noting that the court in Garcia-Jimenez
added three criminal history points based on the date of the offense’s commencement,
and that the increase in that case does not appear to have increased the defendant’s
offense level by more than four points or doubled the defendant’s sentence length). In
United States v. Valle, by contrast, the government was required to demonstrate by clear
and convincing evidence that the defendant was continuously present in the country after
his reentry because the government sought a sentence enhancement that was
disproportionate to the original sentence, as it increased the defendant’s offense level by
eleven and more than doubled the recommended Guidelines range from 1 to 7 months to
37 to 46 months. 940 F.3d at 480.
C. Analysis
The district court did not commit a clear error when it found that Mr. Cobos had
reentered the United States illegally in 2012 and thus included Mr. Cobos’s 2004 and
2009 convictions in calculating his criminal history score. Although Mr. Cobos argues
the district court erred because it did not hold the Government to the “continuous
presence” standard required in the Ninth Circuit, we are not bound by out-of-circuit
precedent. Even if we were to apply the Ninth Circuit’s “continuous presence”
requirement in this case, however, the district court would not have clearly erred in
finding that Mr. Cobos was continuously present in the United States by a preponderance
of the evidence.
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Mr. Cobos’s Reentry in 2012
Mr. Cobos was convicted of illegal reentry under § 1326. In this circuit, this is an
ongoing offense that “is first committed at the time of the reentry and continues to the
time when the defendant is arrested for the offense.” Villarreal-Ortiz, 553 F.3d at 1328
(footnote omitted) (quotation marks omitted). The Government bears the burden of
proving by a preponderance of the evidence that the 2004 and 2009 convictions should be
included in the criminal history calculation because these convictions had the effect of
increasing Mr. Cobos’s criminal history score and criminal history category, and thus
increased Mr. Cobos’s sentence. See Kirk, 894 F.2d at 1164. Neither party disputes that
the Government has proven Mr. Cobos illegally reentered the country in 2012. Likewise,
neither party disputes that the Government has proven Mr. Cobos was found in the
country in 2023. In addition, the record contains ample evidence supporting a finding that
Mr. Cobos’s instant offense began in 2012, including an affidavit Mr. Cobos completed
upon his apprehension in 2023 in which Mr. Cobos stated that he entered the United
States in 2012. ROA Vol. I at 50 (“Q. Did you illegally enter the United States? When?
Where? A. Yes 2012 Eagle Pass[.]”). The record further includes evidence of
Mr. Cobos’s arrests in 2014 and 2015 and evidence that after his 2015 arrest, Mr. Cobos
married, had two children with his now-deceased wife, and worked to support his family
in the United States. Based on the record, the district court did not err when it found that
the instant offense commenced in 2012 and that Mr. Cobos’s 2004 and 2009 convictions
had therefore occurred within ten years of the offense.
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Mr. Cobos’s “Continuous Presence”
Mr. Cobos argues that the district court erred because it did not require the
Government to prove by a preponderance of the evidence that he was continuously
present in the United States between his reentry in 2012 and his apprehension in 2023.
But we are not bound by Ninth Circuit precedent. 2 Indeed, at least one of our sister
circuits has rejected such a requirement as “passing odd” because it would allow a
defendant to “take a brief [international] holiday . . . with no intention of staying [abroad]
and thus avoid any repercussions” from the prior illegal time in the United States. United
States v. Fragozo-Soto, 374 F. App’x 660, 663 (7th Cir. 2010) (unpublished) (citing
Lopez-Flores, 275 F.3d at 663). We need not decide whether to adopt such a test here,
however, because the Government provided sufficient evidence that Mr. Cobos has been
continuously present in the United States since his illegal reentry in 2012.
Under the Ninth Circuit’s standard, the Government would be required to prove
Mr. Cobos’s continuous presence by a preponderance of the evidence. Consideration of
2 Although not binding precedent, our unpublished decisions do not reflect the existence of any “continuous presence” requirement in this circuit. For example, in an unpublished decision, United States v. Huerta, we held that the district court did not err in counting the defendant’s 1989 and 1993 convictions because “[the defendant] admitted he illegally reentered the United States sometime in 1995, and therefore, the instant crime commenced in 1995.” 503 F. App’x 589, 594 (10th Cir. 2012) (unpublished). Although the defendant in Huerta had been arrested in the United States in 2011, we did not discuss any requirement that the government prove the defendant had been “continuously present” in the country since 1995. See id.; see also United States v. Munoz-Pena, 530 F. App’x 846, 847 (10th Cir. 2013) (unpublished) (affirming the district court’s addition of points based on convictions within ten years of the defendant’s reentry into the United States without discussing any “continuous presence” showing).
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the 2004 and 2009 convictions increased Mr. Cobos’s criminal history score by only four
points, which had the effect of increasing his criminal history category by one level, from
III to IV. Mr. Cobos’s recommended Guidelines range would have been 10 to 16 months
without the 2004 and 2009 convictions, but was 15 to 21 months with those two
convictions. The Ninth Circuit has indicated that changes of this magnitude do not render
the increase disproportionate. See Valle, 940 F.3d at 479–80 (requiring a showing by
clear and convincing evidence where the enhancement resulted in an eleven-level
increase in the defendant’s offense level and more than doubled his Guidelines range);
Garcia-Jimenez, 623 F.3d at 940–41 (requiring a showing by a preponderance of the
evidence where the enhancement increased the defendant’s criminal history score by
three points and brought the defendant from criminal history category III to category IV).
Thus, even assuming application of the “continuous presence” requirement, the
Government here would need to meet only the preponderance of the evidence standard.
Under a preponderance of the evidence standard, the record supports a finding that
Mr. Cobos has been continuously present in the United States since his illegal reentry in
2012. As noted, the Ninth Circuit permits the Government to demonstrate “continuous
presence” by (1) accounting for a major portion of the time between Mr. Cobos illegally
reentering the country and his apprehension, and (2) demonstrating that Mr. Cobos had
no reason to leave the country. Garcia-Jimenez, 623 F.3d at 941. The Government
provided both categories of evidence here.
First, the Government’s evidence accounting for significant portions of time
between Mr. Cobos’s reentry and apprehension supports a finding of “continuous
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presence.” The Government provided records of Mr. Cobos’s arrests and subsequent
convictions in 2014 and 2015. The Government also points to statements made by
Mr. Cobos in his sentencing memorandum that, after his arrest in 2015, he married, had
two children, and lived with and worked to support his family in the United States.
Second, the Government introduces evidence demonstrating that Mr. Cobos had
no reason to leave the United States. As has been discussed, Mr. Cobos has had a family,
including his late wife and two young children to whom he is now the sole living parent,
in the United States. In addition, the record reflects that Mr. Cobos has previously been
deported six times, in 1996, 2003, 2004, 2005, 2008, and 2010, and appears to have
returned to the United States shortly after each deportation. This evidence further
supports a finding that Mr. Cobos was continuously present in the United States. See id.
(holding the government provided evidence that the defendant had no reason to leave the
country because the defendant had lived in the United States since he was a child, his
children and partner lived in the United States, and he returned to the United States after
two prior deportations).
While Mr. Cobos contends the evidence does not show he was continuously
present in the United States between his entry in 2012 and his convictions in 2014 and
2015, or between 2015 and his apprehension in 2023, even the Ninth Circuit does not
require evidence that accounts for Mr. Cobos’s presence in the United States at every
moment since his reentry. Id. at 941–42; see also United States v. Hernandez-Guerrero,
633 F.3d 933, 938 (9th Cir. 2011) (holding the district court did not clearly err when “the
PSR presented evidence establishing [the defendant’s] continuous presence in the United
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States in the form of employment history and dates of arrest in the United States, and
established motivation to stay in the country to remain with his family” and “[n]othing in
the record indicates [the defendant] was anywhere but in the United States during the
relevant time period”). The Government’s evidence accounting for Mr. Cobos’s presence
in the United States combined with evidence demonstrating that Mr. Cobos had no reason
to leave the country would be sufficient to satisfy the Government’s burden to show
Mr. Cobos’s “continuous presence” by a preponderance of the evidence. Accordingly,
even if such a showing were necessary in this circuit, the Government has satisfied it.
III. CONCLUSION
The district court did not clearly err when it found that the instant offense began
when Mr. Cobos reentered the United States in 2012 and continued until his arrest in
2023. Thus, the court did not err in calculating Mr. Cobos’s criminal history category as
IV. We therefore AFFIRM his sentence. 3
Entered for the Court
Carolyn B. McHugh Circuit Judge
3 Appellant’s Motion for Expedited Consideration and Decision is denied as moot.