CA1: Being "found" in the US (and plain Booker error)

US v. Figuereo, No. 03-2723, in which a defendant plead guilty to “to being found in the United States after having been deported, a violation of 8 U.S.C. § 1326 (2003)” follows other circuits and finds that for purposes of U.S.S.G § 4A1.1(d) the “fact of being under a criminal justice sentence is a sentencing factor for violations of 8 U.S.C. § 1326, not an element of the crime of being ‘found’ in the United States.”  This guy appears to have reentered the United States, gotten himself arrested, and only after he was in jail was it determined that he was an illegal immigrant.  The court found that: 1) there was no plain Booker error because “ There is no indication, however, that the court would have imposed a more lenient sentence in light of Figuereo's request even if it had been free to do so, particularly given what it described as Figuereo's ‘extensive’ criminal history.”; but 2) remanded for the increasingly common reason that it was improper for the sentencing court to delegate authority to the “probation officer to decide how many drug tests to administer and whether to order him to attend a drug treatment program if he failed a drug test while on supervised release.”