U.S. v. Reyes-Ceja, No. 11-50167 (04-01-13)
An undocumented previously deported defendant is serving a state sentence. The feds find him, and charge him with a 1326 (re-entry). To add insult to injury, and more important, criminal history points, he gets two extra points for being under a criminal justice sentence when he "committed" this offense by being "found in" in the United States. On appeal, he argues that it was not "voluntary." Tough, holds the 9th, you should not have come back. Sure the offense looks at when the government finds the defendant rather than when and what the defendant did, and this is an oddity, but the defendant committed the offense by returning illegally. He cannot escape that this is a continuing offense, and the precedents also apply to sentencing. Oh yes, the 9th aligns with the 5th, 10th and 11th Circuits on this issue.