## Facts

- Lorenzo Flores-Alejo (Flores), a noncitizen, had been removed or returned from the United States on three prior occasions.
- After his fourth unlawful entry, Flores was arrested in Arlington, Texas for driving while intoxicated with a child passenger under Texas law.
- Flores was convicted of that state offense and sentenced to a three-year term of imprisonment.
- While Flores was in the Tarrant County Jail awaiting transfer to state prison to serve the sentence, U.S. Immigration and Customs Enforcement (ICE) agents discovered him and confirmed his prior removals and unlawful reentry.
- The United States charged Flores in federal district court with being “found in” the United States after removal, in violation of 8 U.S.C. § 1326(a) (with increased statutory maximums alleged under § 1326(b)).
- Flores pleaded guilty without a plea agreement and stipulated that he was discovered in the Tarrant County Jail.
- In calculating Flores’s Guidelines range, the probation officer recommended adding two criminal-history points under U.S.S.G. § 4A1.1(d) because Flores was “under [a] criminal justice sentence” when ICE found him.
- The district court applied the two-point addition and sentenced Flores within the resulting Guidelines range.
- Flores appealed, arguing that using § 4A1.1(d) in these circumstances violated the Fifth Amendment and the Eighth Amendment because his custody made his presence at discovery “involuntary” and unrelated to culpability.

## Issues

1. Whether U.S.S.G. § 4A1.1(d) applies to a § 1326(a) “found in” offense when immigration officials discover the defendant while the defendant is serving (or detained under) a state criminal sentence.
2. Whether adding § 4A1.1(d) points in that setting violates the Fifth Amendment’s due process protections or the Eighth Amendment’s prohibition on cruel and unusual punishment because the defendant was in custody when discovered.

## Decision

- The Fifth Circuit affirmed the district court’s judgment and sentence.
- The court held that § 4A1.1(d) was properly applied because a § 1326(a) “found in” offense is treated as continuing until immigration authorities discover the defendant, and Flores was under a criminal justice sentence at the time of discovery.
- The court rejected Flores’s Fifth Amendment claim, concluding that applying § 4A1.1(d) in this context did not amount to unconstitutional punishment for an involuntary act or status.
- The court rejected Flores’s Eighth Amendment claim, concluding that the Guidelines-based two-point addition did not constitute cruel and unusual punishment on these facts.
- The court reviewed the preserved constitutional challenge de novo and found no constitutional violation.

## Legal Principles

- A “found in” prosecution under 8 U.S.C. § 1326(a) is treated as a continuing offense that is not complete until immigration authorities discover the previously removed noncitizen in the United States.
- U.S.S.G. § 4A1.1(d) requires adding two criminal-history points if the defendant committed the instant offense while under any criminal justice sentence, including imprisonment.
- In a § 1326(a) “found in” case, the relevant time for § 4A1.1(d) is when the offense is completed—i.e., when the defendant is discovered—so custody at discovery satisfies the guideline.
- The fact that a defendant is physically confined when discovered does not, by itself, make the sentencing consequence unconstitutional where the underlying federal offense involves unlawful reentry and continued unlawful presence after removal.
- Applying § 4A1.1(d) as written in these circumstances does not violate due process or the Eighth Amendment when the resulting sentence remains within the federal sentencing framework.

## Conclusion

In United States v. Flores, the Fifth Circuit affirmed a sentence that included two additional criminal-history points under U.S.S.G. § 4A1.1(d) after ICE discovered a previously removed noncitizen in a Texas jail while he was serving a state DWI sentence; because a § 1326(a) “found in” offense continues until discovery, the guideline applied at the time he was found, and the court found no Fifth or Eighth Amendment violation from using the two-point addition despite the defendant’s custody at discovery.


United States v. Flores, 531 Fed. Appx. 422 (2013)