Case o' The Week: "During" means "During" . . . Unless "During" an Illegal Reentry Offense - Cruz-Gramajo

"During" means a temporal relationship, when an event takes place while something else is going on -- unless you're an alien charged with illegal reentry. United States v. Cruz-Gramajo,__ F.3d __, No. 07-50381, 2009 WL 1813336 (9th Cir. June 26, 2009) (decision available here). A disappointing decision on a complex sentencing challenge, with a convincing dissent by Judge Pregerson.

Players: Hard-fought case by CD Cal. AFPDs Davina Chen, Michael Tanaka, and Gia Kim. Judge Hall authors the decision joined by Judge R. Smith, Judge Pregerson with a compelling dissent.

Facts: Gruz-Gramajo consolidates three cases. “The facts in each case are similar. Defendants are foreign citizens who were deported and then returned to this country without permission. After their illegal reentries - but before immigration authorities discovered them - Defendants committed and were convicted for various state law offenses, including burglary, driving under the influence, and evading police. At sentencing for their § 1326 offenses, the district courts held that Defendants’ intervening state law crimes constituted ‘criminal history’ for purposes of calculating their Guidelines ranges.” Id. at *1.

Issue(s): “Defendants attack these holdings. They note that the Guidelines exclude from ‘criminal history’ acts that are defined as ‘relevant conduct’ to the conviction offense. Relevant conduct, they argue, includes conduct occurring ‘during’ the conviction offense. Illegal reentry is a continuing offense that lasts from reentry until the violator is found by immigration authorities. Therefore, Defendants argue, the state law crimes they committed after returning to this country were still ‘during’ their § 1326 offenses and thus do not constitute ‘criminal history.’” Id. at *1.

Held: “Defendants’ argument ignores the context, structure and purpose of the Guidelines. We affirm the district courts' decisions to include Defendants' intervening state law crimes in the criminal history calculation.” Id. at *1.

Of Note: In addition to the disappointing primary holding of the case, Judge Hall also skirts another dangerous issue: socking an alien with extra criminal history points for violating § 1326 while under a criminal justice sentence (the USSG § 4A1.1(d) two-point bump). Id. at *1,*9. In this familiar scenario, an alien enters the U.S., later commits a state crime, and is found by ICE agents in state custody. The government typically argues for the § 4A1.1(d) bump even though the alien committed the continuing crime of “entry” long before, and even though the alien is almost always detected by ICE before the state conviction takes place.

In this decision, the majority dodges the issue as to one alien under a harmless error analysis, but holds it applies to the second. Id. at *9. Importantly, however, the alien to whom the points applied had a probation bench warrant out for him on an old case when detected on the federal case. Id. Thus, the key issue for the typical § 4A1.1(d) scenario remains unresolved: if the alien is not on parole or probation, enters, picks up a new state case and is detected by the feds before the state conviction, do the two points apply?

Cruz-Gramajo joins the recent, equally disappointing Lomeli-Mences decision that flirts with this frequent issue. See blog here.

Assignment of these two points in this setting is tremendously unfair, particularly because ICE routinely delays the initiation of federal prosecutions to maximize custodial time by avoiding concurrent sentences. See id. This guideline subsection deserves en banc scrutiny (of Lomeli-Mences, ideally), particularly because immigration offenses are now the majority of federal prosecutions.

How to Use: To shake the defense attack, Judge Hall undertakes an extensive and expansive discussion of relevant conduct. Id. at *3-*9. Much of that discussion involves the relation of relevant conduct, conduct used to enhance a specific guideline (as an adjustment or specific offense characteristic), and grouping. Id. That discussion deserves a close read: it is peppered with broad assertions that could help in other sentencing contexts.

For Further Reading: The better argument, we think, is Judge Pregerson’s dissent. Id. at *10. Relevant conduct says don’t count other offenses committed “during” a federal crime for criminal history points – and in illegal-reentry case, state crimes are clearly “during” the continuing federal illegal-reentry offense. How, asks the Hon. H.P., does the majority avoid that clear language, particularly when the Supreme Court interpreted “during” with the clean, traditional meaning in the recent Ressam case? Id. at *11. Judge Pregerson also is on the scent of the § 41.1(d) unfairness, with a flag on the recent Lomeli-Mences case. Id. at *12 & n.5.


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Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


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