United States v. Velasquez-Coronado , 297 F. App'x 349 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 22, 2008
No. 07-11252
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CESAR VELASQUEZ-CORONADO
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:07-CR-201-ALL
Before KING, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM:*
Cesar Velasquez-Coronado (Velasquez) appeals the sentence imposed by
the district court following his conviction of being illegally found in the United
States after removal. Velasquez, who was serving a state sentence when he was
turned over to immigration authorities, argues that the district court erred by
increasing his criminal history score pursuant to U.S.S.G. § 4A1.1(d). He argues
that, for purposes of § 4A1.1(d), the offense of being found illegally in the United
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-11252
States should terminate when a defendant is compelled to remain in the United
States by a criminal justice sentence.
Velasquez concedes that the issue is foreclosed by United States v.
Santana-Castellano, 74 F.3d 593 (5th Cir. 1996), but he raises the issue to
preserve it for further review. The Government has filed a motion to dismiss the
appeal or for summary affirmance and has alternatively requested an extension
of time in which to file a brief.
“Where a deported alien enters the United States and remains here with
the knowledge that his entry is illegal, his remaining here until he is ‘found’ is
a continuing offense.” Santana-Castellano, 74 F.3d at 598. “Because a ‘found
in’ violation is a continuing violation until the date the alien is discovered by
immigration authorities, [Velasquez] committed all or part of that violation on
the date he was discovered while imprisoned on the state offense.” Id. The court
in Santana-Castellano rejected the contention that § 4A1.1(d) did not apply
because the defendant was incarcerated and thus could not leave the United
States. See id. at 597. Velasquez’s argument is foreclosed.
Accordingly, the Government’s motion for summary affirmance is
GRANTED, its alternative request to dismiss the appeal or for an extension of
time is DENIED, and the judgment of the district court is AFFIRMED.
2