Sixth Circuit: A § 1326(a) “Found-In” Offense Commences at First Unlawful Physical Presence (Continuing-Offense Rule for U.S.S.G. § 4A1.2(e)(2))

I. Introduction

In United States v. Prisiliano Solis-Roblero (6th Cir. Sept. 2, 2026), the Sixth Circuit addressed a recurrent sentencing question in illegal-reentry prosecutions: for a defendant convicted of being “found in” the United States after removal under 8 U.S.C. § 1326(a), when does the “instant offense” commence for purposes of the Sentencing Guidelines’ criminal-history lookback in U.S.S.G. § 4A1.2(e)(2)?

The dispute mattered because if the offense commenced on October 24, 2021 (the earliest proven post-removal presence), several prior sentences fell within the ten-year window and increased Solis-Roblero’s criminal-history score; if it commenced on February 5, 2025 (the date ICE “found” him), those sentences would fall outside the window, lowering the advisory range. Solis-Roblero also pressed a broader interpretive argument: after Kisor v. Wilkie and Sixth Circuit precedent, the district court should not defer to Guidelines commentary (specifically U.S.S.G. § 4A1.2 cmt. n.8) to define “commencement of the instant offense.”

The Sixth Circuit affirmed, holding—on the elements and nature of the § 1326(a) “found-in” offense itself—that the offense is a continuing offense that commences when the defendant first unlawfully and volitionally is physically present in the United States after removal (typically following a surreptitious reentry), and is completed when federal immigration authorities discover and identify the defendant as unlawfully present.

II. Summary of the Opinion

  • Standard of review: factual findings for clear error; legal and mixed questions de novo (United States v. Nicolescu).
  • Commentary deference avoided: the court assumed arguendo that “commencement of the instant offense” is unambiguous (as Solis-Roblero argued using United States v. Josey) and therefore did not rely on U.S.S.G. § 4A1.2 cmt. n.8.
  • Core holding: a § 1326(a) “found-in” offense is a continuing offense that commences upon the defendant’s first unlawful physical presence in the United States after removal and ends when immigration authorities identify/discover the defendant.
  • Application: because the undisputed record showed Solis-Roblero was in the United States on October 24, 2021 and there was no evidence he left and reentered, the district court properly used October 24, 2021 as the commencement date for U.S.S.G. § 4A1.2(e)(2).
  • Outcome: the Sixth Circuit affirmed the 24-month sentence (the statutory maximum under § 1326(a)).

III. Analysis

A. Precedents Cited

1. Deference to Guidelines commentary after Kisor

The panel framed (but ultimately sidestepped) the commentary issue through the lens of Kisor v. Wilkie and the Sixth Circuit’s application in United States v. Riccardi. Under those decisions, courts do not defer to Guidelines commentary unless the guideline text is “genuinely ambiguous.” Solis-Roblero argued “commencement of the instant offense” was unambiguous and should mean the defendant’s “first culpable act” comprising an element (drawing on United States v. Josey). The Sixth Circuit assumed arguendo that he was correct—thereby making the opinion’s rule largely independent of commentary deference.

2. The structure and elements of § 1326(a) “found-in”

To determine what “commencement” means for a “found-in” conviction, the court relied on how federal courts conceptualize § 1326(a)’s disjunctive offenses. It cited United States v. Hernandez-Gonzalez (quoting United States v. Lennon) for the proposition that § 1326(a) contains three separate offenses: illegal re-entry, attempted illegal reentry, and being found illegally.

For elements in the Sixth Circuit, the court relied on United States v. Villafana-Vivero (and noted United States v. Henry): (1) noncitizen status, (2) prior deportation, and (3) thereafter being “found in” the United States without express permission. The opinion also discussed sibling circuits’ four-element formulations via United States v. Ayon-Brito (and its quotation of United States v. Rodriguez-Rodriguez), while emphasizing that the different formulations converge because physical presence is embedded in “found in.”

3. “Found” requires government discovery; criminal liability still requires culpable conduct

The court drew a sharp distinction between (a) the “found” moment—triggered by the government—and (b) the defendant’s culpable conduct necessary for criminal liability. For the “found” moment, the court cited United States v. Ruelas-Arreguin and United States v. Castrillon-Gonzalez for the rule that a noncitizen is “found” when federal immigration authorities discover and identify the person as unlawfully present after removal. It cited United States v. Ayon-Brito for the point that “being found,” by itself, requires no conduct by the defendant.

To reintroduce the defendant’s “conduct element,” the court invoked bedrock actus reus principles, citing United States v. Apfelbaum, United States v. $11,500.00 in United States Currency, and United States v. Zhen Zhou Wu. These authorities supported the proposition that criminal offenses generally require a culpable act in addition to mental state.

4. The continuing-offense doctrine for “found-in”

The opinion aligned itself with an overwhelming appellate consensus that the “found-in” offense is continuing: it begins at unlawful presence following surreptitious reentry and ends at discovery. It cited, among others:

  • United States v. Are, United States v. Amezquito Acevedo, United States v. Diaz-Diaz, United States v. Ayala (physical presence/unlawful presence as the relevant conduct element).
  • United States v. Pacheco-Medina (apodictic point that one cannot be “found” where not physically present).
  • United States v. Murillo-Monzon (quoting United States v. Rodriguez-Rodriguez) to emphasize the offense is “being in the United States,” not merely the instant of apprehension.
  • United States v. Lopez-Flores and United States v. Hernandez-Gonzalez (rejecting the “anomalous” notion of no criminal liability between entry and discovery).
  • United States v. DiSantillo (Congress added the found-in offense to address surreptitious reentries and limitations problems).
  • Distinguishing lawful/regular entry concepts: Castrillon-Gonzalez, United States v. Santana-Castellano, United States v. Rodriguez, United States v. Whittaker.
  • Broad cross-circuit confirmation: United States v. Hernandez-Guerrero, United States v. Ruiz-Gea, United States v. Reyes-Nava, United States v. Gomez, United States v. Escobedo-Torres.

The court also addressed the Second Circuit’s caution in United States v. Rivera-Ventura, explaining it is not inconsistent: the offense is continuing until discovery, but the government cannot “re-find” someone already taken into custody with knowledge of illegality.

5. Sixth Circuit’s prior near-miss and issue preservation

The panel acknowledged that the Sixth Circuit had previously “assumed without deciding” the continuing-offense point in United States v. Jimenez (noting Tapia v. United States abrogated Jimenez on other grounds), and therefore treated the issue as open. On forfeiture, the court relied on Smith v. City of Union to reject the argument that the government had forfeited its continuing-offense theory by not using that exact phrase below.

6. Rebutting defense reliance on Cores and Abouammo

Solis-Roblero invoked United States v. Cores, but the panel explained Cores discussed entry offenses, not the found-in variant. He also relied on Abouammo v. United States (venue and the “conduct element” for § 1519), but the panel treated Abouammo as consistent with its methodology: identify the offense’s conduct element (here, unlawful physical presence after removal) and locate when/where it occurs.

7. Charging instruments need not specify duration; “reentry” is embedded in “found in”

Addressing the argument that the indictment and plea agreement did not reference October 24, 2021, the court cited United States v. Alvarez-Ulloa (quoting Pacheco-Medina) for the proposition that a § 1326(a) indictment generally need not plead the duration of illegal presence or separately allege reentry, because those concepts are embedded in the “found in” offense.

B. Legal Reasoning

  1. Start with the Guidelines question: U.S.S.G. § 4A1.2(e)(2) counts prior sentences imposed within ten years of the defendant’s commencement of the instant offense. Thus, the key is not when the offense is “completed,” but when it “commences.”
  2. Define “commencement” by the offense’s first culpable conduct element: even accepting Solis-Roblero’s preferred interpretive rule (“first culpable act comprising an element”), the court held that the “found-in” offense necessarily includes a conduct element: unlawful, volitional physical presence in the United States after removal (typically following surreptitious reentry).
  3. Treat “found in” as a continuing offense: because the defendant’s culpable presence persists day-to-day and the offense is not chargeable until discovery, the offense starts with the first unlawful physical presence and continues until ICE identifies/discovers the defendant.
  4. Apply undisputed sentencing facts: the PSR showed presence in Tennessee as of October 24, 2021 (a domestic assault conviction), continued employment for years, and no evidence of departure/reentry. With no intervening exit, October 24, 2021 was the earliest proven date of the continuing culpable conduct.
  5. Clarify the limiting principle (exit and reentry): the court noted that if there were evidence Solis-Roblero left and later returned, the commencement date could shift to the later reentry/renewed presence (consistent with Ruelas-Arreguin), but there was no such evidence.

C. Impact

1. Criminal-history calculations in § 1326(a) “found-in” cases: The decision strengthens a government-favorable approach to U.S.S.G. § 4A1.2(e)(2) in the Sixth Circuit by tying “commencement” to the earliest provable post-removal physical presence. Practically, this often expands the ten-year lookback window, increasing criminal-history points where a defendant has older convictions that fall within ten years of first presence but outside ten years of the later “found” date.

2. Reduced dependence on Guidelines commentary after Kisor: Because the panel assumed arguendo that “commencement” is unambiguous and decided the case on offense-structure grounds, the holding is likely resilient in post-Kisor v. Wilkie litigation where defendants challenge commentary reliance under United States v. Riccardi. The court’s reasoning supplies an elements-based answer that can be used even if commentary is disregarded.

3. Litigation focus shifts to proof of presence and travel: The court’s explicit caveat about departure and reentry places a premium on factual development: defendants seeking a later commencement date will likely need evidence of leaving the United States and a later return, while the government will emphasize uninterrupted presence and the earliest reliable markers (state convictions, employment records, bookings).

4. Harmonization with cross-circuit doctrine: The Sixth Circuit aligned itself with the “every court of appeals” consensus described in the opinion, reducing the likelihood of intra-circuit inconsistency and making the Sixth Circuit’s approach more predictable for national § 1326(a) sentencing practice.

IV. Complex Concepts Simplified

  • “Found in” vs. “entered” (8 U.S.C. § 1326(a)): “Entered” generally targets entry through regular channels (or at least focuses on the entry event). “Found in” is designed for surreptitious or unknown entries—where the government may not learn of the person’s presence until later.
  • Continuing offense: a crime that is not confined to a single moment; it continues over time. Here, unlawful presence after removal persists until the person is identified by immigration authorities.
  • Commencement vs. completion: “Commencement” is when the criminal conduct begins; “completion” is when all elements are satisfied such that the offense is finished. For “found-in,” completion occurs at discovery/identification, but commencement occurs at first unlawful physical presence after removal.
  • Actus reus / conduct element: the guilty act required for criminal liability. Even if “being found” is triggered by government action, the defendant’s culpable act is being unlawfully and volitionally present in the United States after removal (stemming from reentry).
  • Kisor / guideline commentary: after Kisor v. Wilkie, courts defer to an agency’s interpretive commentary only if the underlying text is genuinely ambiguous. The Sixth Circuit’s decision here largely avoids that dispute by grounding the answer in the nature of the § 1326(a) “found-in” offense.

V. Conclusion

United States v. Solis-Roblero establishes a clear Sixth Circuit rule for sentencing under § 1326(a): the “found-in” offense is a continuing offense that commences when the defendant first is unlawfully and volitionally physically present in the United States after removal and completes when immigration authorities discover and identify the defendant.

The decision’s significance lies in its practical sentencing consequences under U.S.S.G. § 4A1.2(e)(2), its elements-based reasoning that remains useful even in a post-Kisor environment skeptical of commentary deference, and its roadmap for future litigation focusing on the earliest provable post-removal presence and any intervening departures and reentries.