United States v. Reyes-Ceja

A deportee “found in” the United States by the Bureau of Immigration and Customs Enforcement, while serving a sentence on an unrelated crime, may have his sentence enhanced pursuant to the Sentencing Guidelines for being under a criminal justice sentence.

Gustavo Reyes-Ceja, an alien, was deported from the United States after being convicted and serving his sentence on a number of crimes. After being deported, he illegally re-entered the United States and proceeded to commit more crimes, at which point he was sentenced to a 32-month sentence. While serving his latest sentence, he was “found in” the United States by the Bureau of Immigration and Customs Enforcement (“ICE”). Reyes-Ceja argued that for sentencing purposes, “found in” should be determined by when the California authorities “found” him, instead of when ICE “found” him. Under the Sentencing Guidelines, a sentence is enhanced when the person is under a criminal justice sentence. Reyes-Ceja argued that the purpose behind the “while under” enhancement is to prevent recidivism and to deter future offenses, which is impossible at the point ICE found him since he was imprisoned. The Ninth Circuit joined the Fifth, Tenth, and Eleventh Circuits in holding that the “while under” enhancement “may be applied to a deportee ‘found in’ the United States in violation of 8 U.S.C. § 1326 while he was imprisoned.” The act of returning to the United States after being deported is considered a continuing offense. Therefore, “ICE’s discovery merely completed his crime and started the statutes of limitations running.” AFFIRMED.