“Remote Nexus” Meets “Continuing Offense”: Fifth Circuit Affirms § 5K2.21 Upward Departure for Uncharged Failure-to-Register During a § 1326 “Found In” Reentry

Introduction

In United States v. Taboada-Cruz (5th Cir. Aug. 25, 2025) (unpublished), the Fifth Circuit affirmed an upward departure under U.S.S.G. § 5K2.21 based on the defendant’s uncharged Texas offense of failing to register as a sex offender. The case turns on the interaction of two well-established sentencing doctrines:

The Fifth Circuit’s “low bar” that “even a remote connection” between the charged offense and uncharged conduct will suffice to support a § 5K2.21 departure; and
The “continuing offense” nature of a § 1326 “found in” illegal reentry, which endures from unlawful entry until the defendant is discovered.

Against that backdrop, the panel concluded that the defendant’s failure-to-register offense—committed while he was unlawfully present and before he was “found”—was sufficiently connected to his illegal reentry to justify an upward departure. Although the district court also invoked § 4A1.3 (inadequate criminal history), the appeal squarely challenged only the § 5K2.21 basis, and the Fifth Circuit affirmed on that ground alone.

Summary of the Judgment

After pleading guilty to illegal reentry, the defendant’s Guidelines range was 0–6 months (Criminal History Category I; offense level 4). The district court imposed a 24-month sentence, departing upward under:

U.S.S.G. § 4A1.3 (inadequate criminal history), citing prior immigration offenses not resulting in convictions; and
U.S.S.G. § 5K2.21 (uncharged/dismissed conduct), citing the defendant’s uncharged failure to register as a sex offender in Texas.

On appeal, the defendant argued there was no evidentiary connection between his illegal reentry and the uncharged failure-to-register offense. The Fifth Circuit rejected that argument, holding:

Illegal reentry under the “found in” prong is a continuing offense until discovery (citing United States v. Santana-Castellano and United States v. Midstate Horticultural Co.).
Because the failure-to-register occurred during the commission of the continuing reentry offense, the required nexus under § 5K2.21 was satisfied—especially given Fifth Circuit precedent that “even a remote connection” will suffice (citing United States v. Newsom).
The court distinguished arguments made by the Government in an unrelated case (Sanchez-Leija) that addressed “relevant conduct” under § 1B1.3, emphasizing that § 5K2.21 asks a different, more permissive question.

The panel therefore affirmed the sentence and did not reach the appellant’s alternative harmless-error argument.

Analysis

Precedents Cited and How They Shaped the Decision

United States v. Hildreth, 108 F.4th 912 (5th Cir. 2024) and United States v. Nevels, 160 F.3d 226 (5th Cir. 1998): These cases set the standard of review—abuse of discretion. A departure stands if the judge offers acceptable reasons and the degree of departure is reasonable. Here, the panel focused on whether § 5K2.21 provided an “acceptable reason.”
United States v. Newsom, 508 F.3d 731 (5th Cir. 2007): The cornerstone for the “nexus” requirement under § 5K2.21. The Fifth Circuit has interpreted § 5K2.21 as requiring “some degree of connection” between the uncharged and charged conduct, and “even a remote connection will suffice.” This forgiving threshold framed the panel’s approach.
United States v. Santana-Castellano, 74 F.3d 593 (5th Cir. 1996) and United States v. Midstate Horticultural Co., 306 U.S. 161 (1939): These authorities establish that, where a defendant remains in the United States knowing his presence is illegal, the “found in” version of illegal reentry is a continuing offense from unlawful entry until discovery—an “unlawful act set on foot by a single impulse and operated by an unintermittent force.” The panel used this doctrine to supply temporal and situational overlap between the charged and uncharged conduct.
United States v. Henriquez-Gomez, 853 F. App’x 962 (5th Cir. 2021): An unpublished decision affirming a § 5K2.21 upward departure for uncharged conduct (firearm discharge) in a different context (possession of a firearm by an undocumented person). The panel referenced it to illustrate that § 5K2.21 can embrace uncharged conduct that is not itself the offense of conviction, reinforcing the breadth of the “remote connection” concept.
United States v. Rogers, 423 F.3d 823 (8th Cir. 2005): Cited to emphasize the analytical distinction between “relevant conduct” under § 1B1.3 and uncharged conduct considered for departure under § 5K2.21. Rogers explains that at departure, courts may consider “any information,” including uncharged conduct, so long as it did not already enter the guideline calculation.
United States v. Sanchez-Leija, No. 23-20532, 2024 WL 3617303 (5th Cir. Aug. 1, 2024) (unpublished): The appellant invoked language from the Government’s brief in that separate case to argue the lack of nexus here. The panel distinguished Sanchez-Leija because it concerned whether a failure-to-register offense was “relevant conduct” (affecting criminal history points and offense level), whereas this case asked whether there was any connection sufficient for a § 5K2.21 departure—a different, more permissive inquiry under Fifth Circuit law.

Legal Reasoning

The Fifth Circuit’s analysis proceeds in two steps:

Identify the governing § 5K2.21 standard in the Fifth Circuit. The court reiterates that § 5K2.21 permits an upward departure “to reflect the actual seriousness of the offense” based on dismissed or uncharged conduct that “did not enter into the determination of the applicable guideline range.” Under Newsom, only “some degree of connection” is needed between the uncharged and charged conduct, and “even a remote connection will suffice.”
Supply the connection via the continuing-offense doctrine. The panel then invokes Santana-Castellano and Midstate Horticultural to characterize the § 1326 “found in” offense as continuing until the defendant is discovered. Because the failure-to-register offense happened while the ongoing reentry offense was being committed, the necessary nexus exists. The panel underscores that the bar is low: contemporaneity within a continuing offense satisfies “remote connection.”

The panel also notes an additional linkage (though not necessary to its holding): the predicate sex offense both elevated the illegal reentry penalty (as an aggravated felony) and gave rise to the sex-offender registration duty. That shared predicate further “strengthened” the connection between the charged and uncharged conduct.

Finally, the court rebuffs reliance on arguments made in Sanchez-Leija, explaining that “relevant conduct” under § 1B1.3 and “uncharged conduct” under § 5K2.21 involve distinct legal standards and functions. A failure-to-register offense might not be “relevant conduct” for guideline calculations, yet can still be considered as a basis for an upward departure under § 5K2.21 when it bears “some degree of connection” to the offense of conviction and did not already influence the guideline range.

Impact and Practical Implications

Although unpublished and therefore non-precedential under 5th Cir. R. 47.5, this decision is likely to be persuasive in district courts within the Fifth Circuit and informative beyond it. Key implications include:

Broader use of § 5K2.21 in “found in” reentry cases: Prosecutors may more frequently seek upward departures for uncharged state or federal crimes committed during the unlawful-presence period, arguing that the continuing nature of the reentry offense supplies the necessary temporal and situational nexus.
Reinforcement of the Fifth Circuit’s “low bar” nexus: By pairing the “remote connection” standard with the continuing-offense doctrine, the court provides a ready path to establish the § 5K2.21 nexus when the uncharged conduct occurs before discovery of the reentry offense.
Clarified distinction from § 1B1.3 relevant-conduct disputes: Defense arguments that an uncharged offense is not “relevant conduct” do not foreclose its consideration under § 5K2.21. This increases the importance of objecting on different grounds: disputing factual accuracy, contesting the connection, or arguing that the conduct already influenced the guideline range (which § 5K2.21 forbids).
Sentencing exposure for low-range defendants: Defendants with minimal criminal history and low guideline ranges (like 0–6 months here) face a real risk of substantial upward departures when uncharged conduct is present and linked under the “remote connection” rule.
Framing issues for defense counsel: Counsel should scrutinize the record to:
- Challenge the factual basis of the uncharged conduct if disputed;
- Argue lack of nexus where the uncharged offense is temporally or conceptually removed from the continuing reentry offense;
- Emphasize that any such conduct already factored into the guideline range (if it did), which would bar departure under § 5K2.21.

Complex Concepts Simplified

Upward departure (vs. variance): A departure is a change from the advisory Guideline range based on provisions within the Guidelines (here, § 5K2.21 and § 4A1.3). A variance is a change based on the 18 U.S.C. § 3553(a) factors independent of Guideline-specified grounds. This case involves a departure.
U.S.S.G. § 5K2.21 (Dismissed or Uncharged Conduct): Allows a court to increase the sentence to reflect the offense’s actual seriousness based on dismissed or uncharged conduct, so long as that conduct did not already influence the guideline calculation, and there is at least a “remote” connection to the offense of conviction (per Fifth Circuit law).
U.S.S.G. § 4A1.3 (Under-Represented Criminal History): Permits upward departures when the criminal history category fails to reflect the defendant’s past misconduct or likelihood of recidivism, including prior similar adult criminal conduct not resulting in a conviction. Although present here, this ground was not the focus of the appeal.
“Found in” as a Continuing Offense under § 1326: In illegal reentry cases, when the government proceeds on a “found in” theory, the offense continues from illegal reentry until the defendant is discovered. Conduct occurring during that time can be viewed as contemporaneous with the offense for purposes like § 5K2.21’s nexus requirement.
“Relevant Conduct” (§ 1B1.3) vs. § 5K2.21: Relevant conduct is used to calculate the advisory guideline range and asks whether conduct occurred during commission, in preparation for, or to avoid detection/responsibility for the offense. Section 5K2.21, by contrast, allows consideration of uncharged conduct to depart upward even if it is not “relevant conduct,” provided it did not already affect the guideline calculations and has at least a remote connection to the offense of conviction.

Conclusion

United States v. Taboada-Cruz reinforces the Fifth Circuit’s permissive approach to § 5K2.21. By marrying the “remote connection” standard of Newsom to the continuing-offense nature of a § 1326 “found in” illegal reentry under Santana-Castellano, the court held that an uncharged failure-to-register offense occurring during the period of unlawful presence is sufficiently connected to justify an upward departure. The panel’s careful distinction between § 1B1.3 “relevant conduct” analysis and § 5K2.21’s uncharged-conduct departures clarifies that the latter can apply even when the former does not.

While unpublished, the decision carries significant practical weight. It signals that district courts in the Fifth Circuit may treat uncharged, contemporaneous misconduct as a valid basis for upward departures in illegal reentry cases—particularly those proceeding on a “found in” theory—so long as the conduct did not already influence the guideline range. Defense counsel should be prepared to meet § 5K2.21 arguments with targeted challenges to the factual basis, the asserted nexus, and potential double-counting. Prosecutors, conversely, will likely invoke this decision to press for departures that better capture the “actual seriousness” of the offense when pertinent uncharged conduct exists.