United States v. Martinez-Cortez

MEMORANDUM * Conduct is relevant under U.S.S.G. § lB1.3(a)(l) when it temporally “occurred during the commission of the offense of conviction.” United States v. Johnson, 187 F.3d 1129, 1133-34 (9th Cir.1999). The crime of illegal entry is a continuing offense that commences with entry and is not completed until discovery. See United States v. Reyes-Pacheco, 248 F.3d 942, 946 (9th Cir.2001). Because defendant was convicted of firearm possession after entry but before discovery, the firearm conviction is relevant conduct under the reasoning of Johnson . The district court thus erred in counting the felony firearm offense as a prior sentence under U.S.S.G. §§ 4A1.1, 4A1.2(a)(l) & n. 1. As defendant concedes, his argument that Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), should be overruled is foreclosed by United States v. Weiland, 420 F.3d 1062 , 1079 & n. 16 (9th Cir.2005). REVERSED and REMANDED for re-sentencing. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.