United States v. Martinez-Cortez , 214 F. App'x 702 ( 2006 )

MEMORANDUM ^*

Conduct is relevant under U.S.S.G. § lB1.3(a)(l) when it temporally “occurred during the commission of the offense of conviction.” United States v. Johnson, 187 F.3d 1129, 1133-34 (9th Cir.1999). The crime of illegal entry is a continuing offense that commences with entry and is not completed until discovery. See United States v. Reyes-Pacheco, 248 F.3d 942, 946 (9th Cir.2001). Because defendant was convicted of firearm possession after entry but before discovery, the firearm conviction is relevant conduct under the reasoning of Johnson. The district court thus erred in counting the felony firearm offense as a prior sentence under U.S.S.G. §§ 4A1.1, 4A1.2(a)(l) & n. 1.

As defendant concedes, his argument that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), should be overruled is foreclosed by United States v. Weiland, 420 F.3d 1062, 1079 & n. 16 (9th Cir.2005).

REVERSED and REMANDED for re-sentencing.

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.