United States Court of Appeals
For the Seventh Circuit
United States of America,
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 911--Suzanne B. Conlon, Judge.
Submitted November 21, 2001--Decided December 28, 2001
Before Posner, Manion, and Rovner, Circuit
Posner, Circuit Judge. The defendant's
lawyer has filed a motion to withdraw
supported by an Anders brief; we can
grant the motion if but only if there are
no nonfrivolous grounds for appeal, that
is, if the appeal is "groundless in light
of legal principles and decisions."
United States v. Eggen, 984 F.2d 848, 850
(7th Cir. 1993). All but one of the
grounds discussed, and rightly asserted
to be frivolous, in the Anders brief are
discussed in our unpublished order issued
today; this published opinion is confined
to the one ground on which there is no
circuit or Supreme Court precedent. But
as we explained in Eggen, and should
anyway be obvious, a ground of appeal can
be frivolous even if there is no case on
point--may be obviously frivolous
because, for example, of the clarity of
statutory language, or even as a matter
of common sense.
The defendant received a longer sentence
than he otherwise would have, because he
committed the offense of conviction
(being found in the United States after
having been deported because of an
aggravated felony conviction in 1994 for
lewd acts involving children, 8 U.S.C.
sec. 1326(a)) while on parole and within
ten years of a previous conviction.
U.S.S.G. sec.sec. 4A1.1(c), 1.1(d),
1.2(e). The indictment charged him with
being found in the United States on
November 7, 2000, and this was both after
his parole ended and more than ten years
after the previous conviction. But the
district court ruled that the "found in"
offense began when he reentered the
United States illegally, which took place
sometime before April 1999--a time when
he was still on parole and within ten
years of the previous conviction.
All the courts to address the question
have held that at least in the case of
surreptitious reentry, as in this case,
the "found in" offense is first committed
at the time of the reentry and continues
to the time when he is arrested for the
offense. United States v. Castrillon-
Gonzalez, 77 F.3d 403, 405-06 (11th Cir.
1996); United States v. Reyes-Nava, 169
F.3d 278, 279-80 (5th Cir. 1999) (per
curiam); United States v. Reyes-Pacheco,
248 F.3d 942, 946 (9th Cir. 2001); United
States v. Gomez, 38 F.3d 1031, 1034-35
(8th Cir. 1994). This is clearly correct.
Section 1326(a) punishes entering,
attempting to enter, and being found in
the United States after being deported.
We think "found in" must have the force
of "present in" rather than "discovered
by the INS to be in." The date of
discovery has no significance so far as
culpability is concerned, though it may
bear on the running of the statute of
limitations. See United States v. Gomez,
supra, 38 F.3d at 1035. It would be
passing odd to say that Lopez had
violated the statute when he entered but
then was free of further criminal
culpability until he was discovered by
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