United States v. Delgado-Hernandez
2011 U.S. App. LEXIS 14825
| 8th Cir. | 2011Background
- Delgado-Hernandez pled guilty to one count of being an alien found in the United States after removal, in violation of 8 U.S.C. § 1326(a) and (b)(2).
- The district court sentenced him to 77 months' imprisonment.
- PSR calculated offense level 21 and a criminal history category VI, yielding a guideline range of 77–96 months.
- PSR used July 29, 2001 as the offense commencement date for criminal history purposes, and counted nine prior convictions for 15 points plus two recency points.
- Delgado-Hernandez objected to the starting date, arguing the earliest continuous presence is January 7, 2010, which would reduce points.
- The government presented ICE/DHS documents indicating last entry on October 1, 2002; the district court adopted this date for offense commencement, reducing four points but leaving a VI category.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the start date of the instant offense was correctly determined for criminal history purposes. | Delgado-Hernandez contends the period of entry/continuity is not proven; earliest continuous presence is 2010. | Government argues Oct 1, 2002, is established by documents and reflects ongoing presence until 2010. | No clear error; Oct 1, 2002 supported by evidence; computed continued offense qualifies for applicable points. |
| Whether the sentence was substantively reasonable under 18 U.S.C. § 3553(a). | 77 months excessive; argue 46–57 months is enough and argue double counting and aging of prior offenses. | District court weighed factors properly and chose at bottom of range; amendments after sentencing do not apply. | No abuse of discretion; sentence at bottom of range is reasonable and presumption applies. |
Key Cases Cited
- United States v. Feemster, 572 F.3d 455 (8th Cir. 2009) (abuse-of-discretion standard for sentencing; procedural errors reviewed first)
- Gall v. United States, 552 U.S. 38 (Supreme Court 2007) (reasonableness review and presumption of reasonableness at bottom of Guidelines range)
- United States v. Alba-Esqueda, 457 F.3d 859 (8th Cir. 2006) (continuous offense concept and how relevant conduct is determined for § 1326)
- United States v. Sanchez-Briones, 133 Fed.Appx. 354 (8th Cir. 2005) (offense generally begins on date of reentry for illegal reentry cases)
- United States v. Diaz-Diaz, 135 F.3d 572 (8th Cir. 1998) (offense of being found in the United States typically commences on date of illegal entry)
- United States v. Mendez-Cruz, 329 F.3d 885 (D.C. Cir. 2003) (relevant conduct limited to the reentry immediately preceding being found)
- United States v. Ruelas-Arreguin, 219 F.3d 1056 (9th Cir. 2000) (notes that an alien can avoid being found by leaving and reentering)
- United States v. Centeno-Villanueva, 353 F. App’x 842 (4th Cir. 2009) (rejects suggestion that absence after entry defeats continuous presence for purposes of § 4A1.2)
- United States v. Myers, 598 F.3d 474 (8th Cir. 2010) (addresses double counting between offense level and criminal history)
- Guidelines Amendments, Guidelines Amendments 740 and 742 (2010) (amendments not in effect at time of sentencing; not applied)
- United States v. Brown, 396 F. App’x 328 (8th Cir. 2010) (amendments effective after sentencing not retroactively applied)