United States v. Regla Lara-Cruz , 27 F. App'x 7 ( 2001 )

[NOT FOR PUBLICATION - NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 01-1147
UNITED STATES OF AMERICA,
Appellee,
v.
MANUEL REGLA LARA-CRUZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Cyr, Senior Circuit Judge.
Kathleen J. Hill, by appointment of the court, with whom Law
Office of Kathleen J. Hill was on brief for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Margaret E. Curran, United States Attorney, and Zechariah
Chafee, Assistant United States Attorney, were on brief for
appellee.
December 13, 2001
Per Curiam. Defendant-appellant Manuel Regla Lara-Cruz
was charged in federal district court as an alien who had been
previously deported and was then found in the United States on
or about June 20, 2000, without having first obtained the
consent of the Attorney General to seek readmission. See 8
U.S.C. §§ 1326(a)(2), (b)(2) (1994). Lara-Cruz pled guilty to
the charge. Following a presentence report, the district court
sentenced Lara-Cruz to 41 months' imprisonment.
On this appeal, Lara-Cruz raises two issues. First,
he objects that the district court erred in computing his
criminal history by including two criminal history points for
his June 4, 1990, state court conviction and sentence on drug
charges. Concededly, the two points were properly added unless
the sentence was imposed "more than ten years prior to the
defendant's commencement of the instant offense. . . ."
U.S.S.G. § 4A1.1(b) & cmt. n.2 (2000). No objection to the
criminal history points was made at the time of sentencing, so
our review is for plain error.
The claim of plain error rests on Lara-Cruz's accurate
assertion that he pled guilty to having been found in the United
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States on or about June 20, 2000, slightly more than ten years
after the June 4, 1990, date on which he had originally been
convicted and sentenced in state court on drug charges. The
short answer is that the presentence report, to which no
objection was taken, shows that Lara-Cruz originally reentered
the United States in 1997 and resided in Providence until
arrested in June 2000. Whether or not the offense of being
"found in" the United States is completed upon illegal entry or
only upon arrest, Lara-Cruz's entry into the United States in
1997 was certainly the "commencement of the instance offense,"
U.S.S.G. § 4A1.1, cmt. n.2, the defendant's illegal entry being
a first step in thereafter being "found in" the United States.
See United States v. Castrillon-Gonzalez, 77 F.3d 403, 406 (11th
Cir. 1996).
Lara-Cruz's other objection stems from the fact that
at sentencing, the district judge specified the sentence and
then observed: "And I will make a recommendation to the Bureau
of Prisons, if it is at all possible, to place the Defendant in
a facility near where his family resides." Apparently, the
judgment of conviction omits such a recommendation. Lara-Cruz
argues that this oral comment was a part of the sentence which
controls any subsequent deviation in the written document, see
United States v. Muniz, 49 F.3d 36, 41-42 (1st Cir. 1995), and
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that the district court should be instructed to incorporate the
oral recommendation in the judgment.
After questioning whether this court has any authority
to review the district court's making or refusing to make a
nonbinding recommendation concerning the place of confinement,
see United States v. Serafini, 233 F.3d 758, 778 (3d Cir. 2000),
the government points out that the district court's own language
reflected only a conditional intention and not an outright
commitment. We agree that the district judge may have concluded
that the recommendation was not feasible--a judgment we would
have no basis for disturbing even if the matter were reviewable
at all. Alternatively, the district court may simply have
overlooked the matter.
Accordingly, we affirm the judgment of the district
court but invite counsel for Lara-Cruz to call the district
court's attention to the discrepancy so the district can if it
so chooses, make the recommendation as to place of confinement.
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