Background
Prisiliano Solis-Roblero pleaded guilty under 8 U.S.C. § 1326(a) to being found in the United States after removal. He had previously been removed in 2018, and federal immigration authorities discovered and identified him as unlawfully present on February 5, 2025.
Sentencing evidence showed that Solis-Roblero had been in the United States since at least October 24, 2021, when he committed a domestic assault in Tennessee. Because there was no evidence that he later left and reentered the country, the district court treated October 24, 2021, as the offense’s commencement date. That date brought three prior convictions within the ten-year period prescribed by U.S.S.G. § 4A1.2(e)(2), producing criminal-history category VI and a Guidelines range of 24 to 30 months rather than category V and a range of 21 to 24 months. The court imposed the statutory maximum sentence of 24 months.
The Court’s Holding
The Sixth Circuit affirmed, holding that the § 1326(a) offense of being found in the United States is a continuing offense. It commences when a defendant is first physically present in the country following a surreptitious reentry after removal and is completed when federal immigration authorities discover and identify the defendant.
The court assumed without deciding that the phrase “commencement of the instant offense” is unambiguous and that the Guidelines commentary therefore need not be consulted. Even under Solis-Roblero’s proposed focus on the first culpable act comprising the offense, his unlawful and volitional physical presence was culpable conduct. Uncontested sentencing evidence established his presence by October 24, 2021, with no intervening departure, so the district court properly used that date to calculate his criminal-history score.
Key Takeaways
- A § 1326(a) found-in offense begins with unlawful physical presence following surreptitious reentry and ends when immigration authorities discover and identify the defendant.
- For U.S.S.G. § 4A1.2(e)(2), the relevant date is the offense’s commencement, not the later date on which the offense is completed.
- A sentencing court may use uncontested evidence of the defendant’s earlier physical presence to determine the commencement date, even when the indictment and plea agreement do not specify that date.
Why It Matters
The decision establishes in the Sixth Circuit that an unlawfully present noncitizen’s found-in offense may commence years before federal authorities identify the person. That earlier date can cause older convictions to count toward the defendant’s criminal-history score and increase the applicable Guidelines range.
The court also avoided deciding whether U.S.S.G. § 4A1.2’s commentary may be consulted after Kisor, concluding that the offense conduct itself supported the earlier commencement date.