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Click here for the full text of this decision FACTS:Aquiles Alvarado-Santilano appeals his sentence for illegal re-entry after deportation pursuant to 8 U.S.C. ��1326(a) and (b)(2). The district court found that Alvarado had been previously convicted of an aggravated felony, determined that the statutory maximum sentence was therefore 20 years as opposed to two, and increased Alvarado’s base offense level by 16 levels pursuant to U.S. Sentencing Guidelines �2L1.2(b)(1)(A)(ii). The district court then assessed two criminal history points pursuant to U.S.S.G. �4A1.1(b) in light of Alvarado’s previous conviction for making a false claim of United States citizenship. Alvarado challenges both of these aspects of his sentence. Alvarado, a Mexican citizen, was removed from the United States in December 2002. Immigration authorities found him again in the United States in June 2004. Alvarado pleaded guilty to one count of illegal re-entry after deportation in violation of 8 U.S.C. �1326. The Pre-Sentence Report set Alvarado’s base offense level at eight, added 16 levels because Alvarado had been previously deported after a conviction for involuntary manslaughter, and then subtracted three levels for acceptance of responsibility. The PSR also assessed two criminal history points for a 2001 conviction for making a false claim of citizenship. Alvarado did not object to the PSR at his sentencing hearing. The district court sentenced Alvarado to 79 months, a sentence within the guideline range as calculated in the PSR. Alvarado argues that the district court erred in failing to treat his conviction for involuntary manslaughter as an element of his offense and for treating his 2001 conviction as a prior sentence rather than relevant conduct. HOLDING:Affirmed. In light of the continuing validity of United States v. Almendarez-Torres, 523 U.S. 224 (1998), the district court did not err in not treating Alvarado’s prior conviction for involuntary manslaughter as an element of his �1326 offense. Alvarado also challenges the district court’s addition of two criminal history points pursuant to U.S.S.G. �4A1.1(b) based on his prior sentence for falsely claiming to be a United States citizen. The primary issue in this case is whether two illegal reentries constitute two separate �1326 violations if, in the interim between them, the defendant is found in the United States by immigration officials and deported. Alvarado relies on United States v. Corro-Balbuena, 187 F.3d 483 (5th Cir. 1999), which he claims requires this court to hold that his multiple illegal reentries were a single continuing offense. The Corro-Balbuena court adopted two contrary positions in the same opinion, stating both that being found by immigration officials completes a �1326 violation and also that any of Corro-Balbuena’s illegal re-entries could be used to mark the beginning of his current violation, even though he had been found by immigration officials after all but one of them. On the facts of the case, the broad statement that “each or any” of Corro-Balbuena’s previous re-entries could be used as the start-date of his violation was unnecessary. What was essential to the result was that his 1994 re-entry, which he effected while on probation, was a part of his current re-entry. Corro-Balbuena was not found by immigration officials between that re-entry and the “finding” that led to the case before the court. Rather, he either stayed in the United States the entire time or else left voluntarily and returned sometime later. “Recognizing that we cannot give effect to every statement in Corro-Balbuena, then, we read that case to stand only for the proposition that a �1326 violation continues even if the defendant voluntarily leaves the country and subsequently returns. Any portion of the opinion that implies that being found by immigration officials does not complete a �1326 violation is dicta and would not be binding on this court even if it were a correct statement of the law.” Alvarado’s 2001 false claim of citizenship cannot fairly be characterized as an act that occurred during the commission of his 2004 illegal re-entry, in preparation for that offense or in the course of attempting to avoid detection or responsibility for that offense. Alvarado has not demonstrated that his 2001 and 2004 offenses were jointly planned or that either entailed the other, and so he has not demonstrated a common scheme or plan. Alvarado similarly fails to establish that his 2001 and 2004 offenses were a common course of conduct, which the commentary explains is “a single episode, spree, or ongoing series of events.” U.S Sentencing Guidelines �1B1.3, comment. (n. 9(B)). Alvarado’s false claim of citizenship does not qualify as relevant conduct and cannot be considered part of the offense of conviction, the court concludes. OPINION:Garza, J.; Reavley, Garza and Benavides, JJ.

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