United States v. Hernandez-Guerrero
2011 U.S. App. LEXIS 3488
| 9th Cir. | 2011Background
- Hernandez pleaded guilty to being an alien found in the United States after deportation under 8 U.S.C. §1326(a); sentenced to 27 months.
- He had a 1992 California conviction for possession for sale of a controlled substance with a three-year sentence and was deported on June 7, 1995.
- He was found in the United States on June 29, 2009; the PSR states his last reentry was June 29, 1995.
- The district court added three criminal-history points under §4A1.2(e)(1) based on the 1992 conviction, finding the prior sentence was within fifteen years of the instant offense commencement.
- The court treated the instant offense as commencing on June 29, 1995 (reentry), concluding the 1992 sentence fell within fifteen years, warranting the points.
- On appeal, the Ninth Circuit held the operative date for §1326 offenses is the reentry date, and affirmed the sentence based on the PSR finding of 1995 last reentry.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| operative date for §1326 offenses in §4A1.2(e)(1) | Hernandez argues the 2009 found-in date should govern. | Government (Hernandez) argues the reentry date (1995) is operative. | Reentry date governs; 1995 date used to calculate points. |
Key Cases Cited
- United States v. Reyes-Pacheco, 248 F.3d 942 (9th Cir. 2001) (continuing §1326 offense; use of reentry date for criminal history)
- United States v. Ramirez-Valencia, 202 F.3d 1106 (9th Cir. 2000) (found-in date applied after IIRIRA in continuing offense)
- United States v. Maria-Gonzalez, 268 F.3d 664 (9th Cir. 2001) (context of IIRIRA; offense continues past effective date)
- United States v. Garcia-Jimenez, 623 F.3d 936 (9th Cir. 2010) (continuing offense; preponderance evidence constitutes presence)
- United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (district court may rely on PSR undisputed statements)