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U.S. v. Garcia-Jimenez, No. 09-50304 (10-6-10) (Bybee with Noonan and Clifton). The defendant was sentenced under 1326 for illegal re-entry. The appeal concerns the criminal history calculation. The defendant, who was in and out of California prison because of parole violations (he was remarkably unlucky when it came to his burglary attempts), argues that he should not get +2 for committing this offense while under parole. He argues that between one release from prison and a subsequent arrest, he could have gone to Mexico. This would mean that he was not here while under parole and this was not a continuing offense. The district court found by preponderance that he had not and adjusted under 4a1.1. The 9th affirmed. The defendant had ties to California (he had come when he was five), had family here, and tended to get jobs, and commits crimes, quickly upon his release. The 9th also upheld that point adjustment for committing this offense within two years of release from imprisonment, holding that parole terms arising from the original offense counted as imprisonment.

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