Wednesday, February 21, 2007

Illegal Entry not Relevant Conduct to Drug Offense Committed One Month Later

United States v. Yerena-Magana, No. 05-40631 (5th Cir. Feb. 12, 2007) (Smith, Garza, Owen)

Yerena-Magana explores the interaction between the relevant conduct defintion found in U.S.S.G. §1B1.3, and the criminal history provisions of Chapter 4 of the Guidelines Manual. Guideline 4A1.1 assesses criminal history points for certain "prior sentences." The term "prior sentence" does not include a sentence imposed for conduct that was "part of the instant offense." Application Note 1 goes on to explain that "[c]onduct that is part of the instant offense means conduct that is relevant conduct under the provisions of §1B1.3 (Relevant Conduct)."

Which brings us to the criminal history dispute in this case, involving two offenses that Yerena committed one month apart from each other. First, Yerena illegally entered the United States. A month later, he was caught with a load of marijuana concealed inside a truckload of watermelons. Rather than charging him with the drug offense, the Government charged Yerena with illegal entry (8 U.S.C. § 1325). Yerena pled guilty, and was sentenced to 60 days in jail.

While Yerena was serving that sentence, the Government charged him with possession of marijuana with intent to distribute and with conspiring to do so. He wound up pleading guilty to just the PWID charge. In calculating Yerena's criminal history score for the PSR, the probation officer did not assess any criminal history points for the illegal entry conviction because the PO determined that it was part of the drug offense. The district court disagreed, and included 2 criminal history points for the illegal entry conviction.

Yerena appealed, arguing that the district court erred by assessing criminal history points for the illegal entry conviction, for two reasons. First, he argued that the illegal entry and drug offenses were "related cases" for purposes of §4A1.2(a)(2), which provides that "[p]rior sentences imposed in related cases are to be treated as one sentence for purposes of §4A1.1(a), (b), and (c)." The court rejected that argument, pointing out that §4A1.2(a)(2) "examines the relationship between two prior sentences," not "the relationship between a prior sentence and the offense for which the sentence is to be imposed." Slip op. at 7.

Second, Yerena argued that the illegal entry offense was not a "prior sentence" at all, because it was relevant conduct to the drug offense. He pointed to the portion of §1B1.3 which includes conduct "that occurred . . . in preparation for" the offense of conviction. The court disagreed:
There is no evidence in the record before us that Yerena-Magana intended to commit the drug offense for which he was sentenced at the time he illegally entered the United States. We will not infer that he illegally entered this country “in preparation for” the drug offense, as he requests. But even were there such evidence, the nexus between the illegal entry on May 24, 2004 and the drug offense on June 24, 2004 is too attenuated to constitute “preparation for that offense.” The illegal entry made the drug crime possible only in the most philosophic and metaphysical sense. The illegal entry was a “discrete, noncontinuing offense . . . completed prior to” the drug offense, which harmed different societal interests.

Slip op. at 9-10.

Note that this gets a lot more complicated when you're dealing with someone convicted of illegal reentry under the "found in" alternative in 8 U.S.C. § 1326, as opposed to illegal entry under § 1325. That's because the "found in" offense commences with the illegal reentry and continues until the alien is actually found, whereas an illegal entry is complete upon entry. Note also that you'll have to deal with some bad Fifth Circuit case law if you find yourself in that situation (the Vargas-Garcia case discused at pages 7-10 of the opinion).

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