In US v. Hernandez-Gonzalez, Nos. 06-1998 & 2130 (3d Cir. 7/19/07), the Circuit held that for purposes of calculating the Guidelines criminal history score, the offense of being an alien "found in" the United States following deportation commences on the date the alien entered the US, not the date he/she was actually found in the US by authorities.
Defendant, an alien from Mexico, was convicted of five minor offenses from 1990 to 1992. In 1994 he was convicted of an aggravated felony, and after serving his sentence he was deported to Mexico in 1998. He then re-entered the US illegally sometime in 1999. He was ultimately "found in" the US by authorities in March, 2005. The district court did not count the five offenses from 1990 to 1992 in the criminal history score because they were all more than 10 years prior to his being found in the US in 2005. The government appealed, arguing that for Guidelines criminal history purposes, USSG 4A1.2, the offense should be deemed to have "commenced" when defendant re-entered the US sometime before Jan 1st of 2000.
The Circuit agreed that the offense of being found in the US, for Guidelines purposes, commences when the alien enters the US. The Circuit distinguished two cases the district court relied upon, finding that neither addressed the exact issue presented here. In US v. DiSantillo, 615 F.2d 128 (3d Cir. 1980), the Court held that for purposes of the statute of limitations, being found in the US is not a continuing offense when the alien enters non-surreptitiously through a port of entry. That decision is thus limited to the statute of limitations context where the authorities are aware of the alien's entry. In US v. Lennon, 372 F.3d 535 (3d Cir. 2004), the Court declined to address the issue here, but suggested that the reasoning of DiSantillo does not apply when the alien has entered the country surreptitiously.
The Circuit reversed and remanded for a sentencing hearing to determine the date of the re-entry, because the district court had not made any findings regarding when the last time was that defendant entered the US. The presentence report stated that defendant had visited his parents on at least two occasions following his re-entry in 1999, and if the last of these visits took place later than 2002, the prior convictions would still be outside the 10 year time period. On remand, the district court will thus determine when the most recent re-entry was, and when the "found in" offense commenced for Guidelines purposes.
The Circuit also rejected defendant's cross-appeal arguing for a lower sentence based on disparity with jurisdictions that have a "fast-track" program. Following its decision in US v. Vargas, 477 F.3d 94 (3d Cir. 2007), the Circuit affirmed the district court's refusal to vary from the Guidelines range on disparity grounds.