United States v. Garcia-Vasquez, Migu ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-4275
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MIGUEL A. GARCIA-VASQUEZ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03-CR-100—William C. Griesbach, Judge.
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ARGUED JULY 7, 2004—DECIDED AUGUST 12, 2004
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Before CUDAHY, COFFEY, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Mexican citizen Miguel Garcia-
Vasquez pleaded guilty to illegally reentering the United
States after having been deported, 8 U.S.C. § 1326, and was
sentenced to 57 months’ imprisonment. The district court
added two criminal history points because it found that
Garcia-Vasquez committed the offense while under a “criminal
justice sentence”—specifically an unexecuted 1998 California
warrant for a probation violation. See U.S.S.G. § 4A1.1(d).
Garcia-Vasquez challenges the addition of the two criminal
history points, arguing that California authorities were
unreasonably dilatory in executing the warrant. We affirm.
2 No. 03-4275
Garcia-Vasquez was convicted by a California court of
attempted robbery in 1997, and sentenced to one year in pris-
on followed by two years of probation. Throughout these
California proceedings, Garcia-Vasquez used the name
“Michael Garcia,” and also a false birth date. Immediately
after Garcia-Vasquez was released from prison in June 1998,
immigration authorities deported him to Mexico. When
Garcia-Vasquez did not report to his probation officer in
July, the state court revoked his probation and issued a
bench warrant for his arrest.
Garcia-Vasquez soon returned to the United States, and
in May 2000 was arrested in Wisconsin following a domestic
abuse incident in which he was charged with resisting law
enforcement officers. He told Wisconsin officials that his
name was “Miguel Garcia,” and gave them a different date
of birth than he had given the authorities in California;
throughout the Wisconsin proceedings he continued to use
this name. Garcia-Vasquez was eventually convicted and
sentenced to three years’ imprisonment. While he was
serving that sentence, immigration authorities discovered
in May 2003 that Garcia-Vasquez was the same person who
had been deported in 1998, and they charged him with
illegally reentering the country.
The sentencing guidelines provide that a defendant’s
criminal history score is to be increased by two points if he
“committed the instant offense while under any criminal
justice sentence, including probation, parole, supervised re-
lease, imprisonment, work release, or escape status.” U.S.S.G.
§ 4A1.1(d). The district court added two points to Garcia-
Vasquez’s criminal history score because of the outstanding
warrant for his California probation violation. The district
court therefore calculated Garcia-Vasquez’s criminal history
category as IV, yielding a sentencing range of 57 to 71
months. If the two criminal history points had not been
imposed, Garcia-Vasquez’s criminal history category would
be III, and his sentencing range would be 46 to 57 months.
No. 03-4275 3
Garcia-Vasquez argues that the district court should not
have imposed the additional two criminal history points
because, he says, California authorities have shown no
interest in executing the warrant and their delay should
invalidate the warrant for purposes of § 4A1.1(d). Garcia-
Vasquez relies on our decision in United States v. Lee, 941
F.2d 571, 572-73 (7th Cir. 1991), in which we held that the
two-point increase under § 4A1.1(d) did not apply to a de-
fendant who had been subject to an unreasonably long
delay in Missouri’s execution of an arrest warrant for a
probation violation. Id.
But Lee is inapplicable here for two reasons.1 First, Lee
interpreted Missouri law, id., and Garcia-Vasquez has not
cited, nor have we located, any rule in California that offi-
cials must execute warrants for probation violations within
a reasonable time. Second—and most importantly—Garcia-
Vasquez unquestionably reentered the country before his
probation term expired, thereby rendering irrelevant any
question about the effect of the California court’s revocation
of his probation. Garcia-Vasquez was certainly in the
United States when he was arrested in Wisconsin in May
2000, one month before his two-year California probation was
to have expired. Because his probation had yet to expire in
May 2000, Garcia-Vasquez remained under a criminal jus-
tice sentence at the time he committed his illegal reentry.
See United States v. Lopez-Flores, 275 F.3d 661, 663 (7th
Cir. 2001) (illegal reentry is an ongoing offense that is first
1
The sentencing guidelines were amended four months after Lee
was decided, U.S.S.G., App. C, amend. 381 (effective Nov. 1, 1991)
(adding U.S.S.G. § 4A1.2(m) and amending § 4A1.1, comment.
(n.4)), and the First Circuit has suggested that the amendment
invalidated Lee. See United States v. Camilo, 71 F.3d 984, 987 (1st
Cir. 1995). But we need not reach the question of Lee’s continuing
validity because Garcia-Vasquez has not demonstrated that his
case is analogous.
4 No. 03-4275
committed at the time the defendant enters the country, not
at the time that immigration authorities discover his
presence).
Lastly, we add that Garcia-Vasquez can hardly criticize
California for not executing the warrant expeditiously. The
reason federal authorities discovered Garcia-Vasquez’s il-
legal status in May 2003 instead of May 2000 was because
he had concealed his identity by repeatedly using false
names and birth dates. Garcia-Vasquez was in custody in
Wisconsin under the name “Miguel Garcia” and with a dif-
ferent date of birth than he had used in California. Even when
his true identity was discovered in May 2003, California
still knew Garcia-Vasquez as “Michael Garcia,” and it learned
that he was the same person placed on probation in 1998
only when the probation officer who drafted the presentence
report in this case contacted California authorities. Garcia-
Vasquez could have informed California in May 2000 of his
incarceration in Wisconsin and requested sentencing for his
probation violation, see Cal. Penal Code § 1203.2a; People v.
Broughton, 133 Cal. Rptr. 2d 161, 171 (Cal. Ct. App. 2003),
but instead he tried to hide his identity. He cannot now
claim that he should benefit from his attempted ruse.
The district court properly imposed the two criminal his-
tory points under § 4A1.1(d). Garcia-Vasquez’s sentence is
AFFIRMED.
No. 03-4275 5
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-12-04