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Case Name:
USA V RUELAS-ARREGUIN

Case Number:

Date Filed:

99-50213

07/19/00



FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
                                                     No. 99-50213
Plaintiff-Appellee,
                                                     D.C. No.
v.
                                                     CR-98-02100-NAJ
ANDRES RUELAS-ARREGUIN,
                                                     OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Napoleon A. Jones, District Judge, Presiding

Argued and Submitted
March 7, 2000--Pasadena, California

Filed July 19, 2000

Before: J. Clifford Wallace, Harry Pregerson and
Sidney R. Thomas, Circuit Judges.

Opinion by Judge Thomas

_________________________________________________________________



COUNSEL

Michelle S. Polom, Federal Defenders of San Diego, Inc., San
Diego, California, for the defendant-appellant.

David P. Curnow, Assistant U.S. Attorney, San Diego, Cali-
fornia, for the plaintiff-appellee.

_________________________________________________________________

                               8501


OPINION

THOMAS, Circuit Judge:

This appeal would seem to present a question from the
realm of quantum physics: to what extent does existence
depend on observation? Or, in our terms, is venue proper only
where an alien is seen and arrested for being "found in" the
United States in violation of 8 U.S.C. S 1326, or may he be
prosecuted in the district where he illegally entered and tra-
versed unseen? Applying the continuing offense doctrine, we
conclude that venue is proper in either district and affirm the
conviction. We remand for resentencing, however, because
Ruelas-Arreguin was improperly denied an additional one-
level adjustment for acceptance of responsibility.

I

Ruelas-Arreguin is a native and citizen of Mexico who ille-
gally returned to the United States after having been deported.
Upon reentry, he was transported through Southern California
undetected in the bed of a pickup truck traveling east towards
Yuma, Arizona. INS border patrol agent Stephen Johnson was
traveling westbound on Interstate 8 from Yuma to El Centro,
California when he received a radio dispatch regarding a
white pickup truck with a red stripe and camper shell heading
eastbound on Interstate 8. Agent Johnson was approximately
two miles within California when he received the radio mes-
sage. He sighted the pickup truck, crossed the median, and
began following the vehicle for five or six miles eastbound on
Interstate 8 from California into Arizona. At this initial sight-
ing, only the driver was visible.

After the vehicle stopped in the parking lot of a local res-
taurant in Yuma, Agent Johnson approached the vehicle to
question the driver and, at that time, discovered numerous
people, including Ruelas-Arreguin, laying on the floor of the
truck bed. After he had established their Mexican citizenship,

                               8502


Agent Johnson arrested the occupants of the vehicle and
arranged to have them transported to the Yuma border patrol
station, where they were each interviewed by INS officials
and processed through the IDENT system. When questioned
at the Yuma station, Ruelas-Arreguin confirmed that he had
been previously convicted for attempted murder. He also
signed a sworn affidavit indicating that he was in the United
States illegally after having been deported and that he had
used a false name.

Thereafter, Ruelas-Arreguin was indicted in the Southern
District of California on one count of being a deported alien
found in the United States in violation of 8 U.S.C.S 1326.
Following the government's case-in-chief, Ruelas-Arreguin
presented no case other than a motion for judgment of acquit-
tal under Fed. R. Crim. P. 29 ("Rule 29"). The district court
deemed the Rule 29 motion timely but did not entertain it
until after closing arguments and the reading of the jury
instructions. In that motion, Ruelas-Arreguin argued that
venue was improper in the Southern District of California
because he was "found" for purposes of S 1326 in Arizona,
not California.

The district court rejected the asserted grounds for acquittal
but took the venue issue under submission. After the jury
returned with a guilty verdict, the district court denied the
venue portion of the Rule 29 motion without prejudice and
asked for additional briefing by sentencing.

At the sentencing hearing, the district court denied the Rule
29 motion in its entirety without further explanation. The dis-
trict court also rejected Ruelas-Arreguin's request for an addi-
tional one-level downward adjustment for acceptance of
responsibility under U.S.S.G. S 3E1.1(b)(1). Instead, the dis-
trict court awarded only a two-level reduction under U.S.S.G.
S 3E1.1(a), observing that: "While Mr. Ruelas certainly is
deserving of the minus 2 for acceptance, the additional point
basically being a convenience factor to the parties involved,

                               8503


is not warranted and the court will not award the additional
point." Ruelas-Arreguin was then sentenced to 63 months
imprisonment, to be followed by 3 years of supervised
release.

The district court had jurisdiction under 18 U.S.C.S 3231,
and we have jurisdiction over this timely appeal pursuant to
28 U.S.C. S 1291 and 18 U.S.C. S 3742. We review de novo
the question whether venue was properly laid in the Southern
District of California, see United States v. Childs, 5 F.3d
1328, 1331 (9th Cir. 1993), and we review the district court's
decision to withhold an additional one-level adjustment under
U.S.S.G. S 3E1.1(b) for clear error. See United States v.
Villasenor-Cesar, 114 F.3d 970, 973 (9th Cir. 1997).

II

Initially, we must decide whether Ruelas-Arreguin pre-
served his objection to venue when he moved for a judgment
of acquittal on grounds of improper venue at the close of the
government's case. Consistent with the uniform decisions of
our sister circuits, we conclude that he did.

If a defect in venue is clear on the face of the indictment,
a defendant's objection must be raised before the government
has completed its case. See Hanson v. United States, 285 F.2d
27, 28 (9th Cir. 1960). However, as numerous circuits have
recognized, if the venue defect is not evident on the face of
the indictment, a defendant may challenge venue in a motion
for acquittal at the close of the government's case. See, e.g.,
United States v. Robinson, 167 F.3d 824, 829 (3d Cir.), cert.
denied, 120 S. Ct. 118 (1999); United States v. Melia, 741
F.2d 70, 71 (4th Cir. 1984) (per curiam); United States v. Sol-
omon, 29 F.3d 961, 964 (5th Cir. 1994); United States v.
Brandon, 50 F.3d 464, 469 (7th Cir. 1995); United States v.
Black Cloud, 590 F.2d 270, 272 (8th Cir. 1979); United States
v. Daniels, 5 F.3d 495, 496 (11th Cir. 1993) (per curiam).

                               8504


Although we have not expressly adopted such a rule, see
United States v. Jensen, 93 F.3d 667, 669 n.2 (9th Cir. 1996)
("We express no view as to the proper disposition of a motion
for acquittal for lack of venue, should one be made after the
close of the government's case-in-chief."), we have neverthe-
less made room for it, see Gilbert v. United States, 359 F.2d
285, 288 (9th Cir. 1966) (implying that venue objection may
have been timely if raised in motion for acquittal). Thus, in
line with the persuasive decisions of our sister circuits, we
hold that venue objections made at the close of the govern-
ment's case-in-chief are timely if the defect in venue is not
apparent on the face of the indictment.

In this case, the alleged defect in venue was not apparent
on the face of the indictment. The indictment alleged that
Ruelas-Arreguin was "found in" the United States "within the
Southern District of California." On its face, therefore, the
indictment alleged proper venue because it alleged facts
which, if proven, would have sustained venue in the Southern
District of California. See United States v. Mendoza, 108 F.3d
1155, 1156 (9th Cir. 1997) ("[O]nly the indictment may be
considered in pretrial motions to dismiss for lack of venue,
and [ ] the allegations must be taken as true."). Thus, Ruelas-
Arreguin preserved his objection to venue when his counsel
moved at the close of the government's case for a judgment
of acquittal on the ground that venue was improper in the
Southern District of California.1
_________________________________________________________________
1 In holding that Ruelas-Arreguin preserved his venue objection, we do
not suggest that an acquittal is the proper remedy for improper venue. See
United States v. Hernandez, 189 F.3d 785, 792 n.5 (9th Cir. 1999) ("We
reject the contention by Hernandez that a judgment of acquittal is the
appropriate remedy in the case of improper venue."). When venue has
been improperly laid in a district, the district court should either transfer
the case to the correct venue upon the defendant's request, see Fed. R.
Crim. P. 21(b), or, in the absence of such a request, dismiss the indictment
without prejudice, see United States v. Kaytso , 868 F.2d 1020, 1021 (9th
Cir. 1989).

                               8505


III

Although the venue objection may have been timely, venue
was proper in the Southern District of California. The Consti-
tution requires that venue lie in the district where a crime was
committed. See U.S. Const. art. III, S 2, cl. 3; U.S. Const.
amend. VI. This constitutional command is repeated in the
Federal Rules of Criminal Procedure. See Fed. R. Crim. P. 18.
The burden of establishing proper venue by a preponderance
of the evidence rests with the government. See United States
v. Angotti, 105 F.3d 539, 541 (9th Cir. 1997).

[1] To decide whether venue was proper in the Southern
District of California, we "must initially identify the conduct
constituting the offense . . . and then discern the location of
the commission of the criminal acts." United States v.
Rodriguez-Moreno, 526 U.S. 275, 279 (1999). Under S 1326,
a deported alien may be convicted for either entering, attempt-
ing to enter, or being "found in" the United States. See 8
U.S.C. S 1326(a)(2). They are three distinct offenses. See
United States v. Pacheco-Medina, _______ F.3d _______, No. 99-
50414, 2000 WL 622076, at *4 (9th Cir. May 16, 2000). The
crime of being "found in" the United States is completed
when the "alien is discovered and identified by the immigra-
tion authorities." United States v. Hernandez , 189 F.3d 785,
791 (9th Cir. 1999), cert. denied, 120 S. Ct. 1441 (2000).
However, the crime does not begin and end there.

[2] An "entry" into the United States is required before a
person is "found in" the United States. See Pacheco-Medina,
2000 WL 622076, at *4. "Entry" into the United States is
"embedded in the `found in' offense." Id. Thus, the crime of
being "found in" the United States commences with the ille-
gal entry, but is not completed until discovery. See United
States v. Salazar-Robles, 207 F.3d 648, 650 (9th Cir. 2000).
In that sense, we have held that it is a "continuing offense,"
United States v. Ramirez-Valencia, 202 F.3d 1106, 1110 (9th
Cir. 2000) (citing United States v. Guzman-Bruno , 27 F.3d

                               8506


420, 423 (9th Cir. 1994)), even though the crime does not
crystalize until official discovery and identification. To para-
phrase T.S. Elliot, the crime's beginning is in its end, and its
end in its beginning.

[3] For such continuing crimes, "[v]enue may lie in any
district in which the continuing conduct has occurred." United
States v. Barnard, 490 F.2d 907, 910 (9th Cir. 1974); accord
Angotti, 105 F.3d at 542 ("[C]ontinuing offenses may be pros-
ecuted where they are begun, continued, or completed. . . .")
(citing 18 U.S.C. S 3237(a)). Section 3237(a), the venue stat-
ute for continuing offenses, provides that:

      any offense against the United States begun in one
      district and completed in another, or committed in
      more than one district, may be inquired of and prose-
      cuted in any district in which such offense was
      begun, continued, or completed.

18 U.S.C. S 3237(a).

[4] Here, Ruelas-Arreguin was undoubtedly "found" in the
District of Arizona when he was identified and arrested by the
INS; however, because illegal entry is "embedded " in the
"found in" offense, the crime commenced in the Southern
District of California and continued until his apprehension.
Thus, under 18 U.S.C. S 3237(a), venue was proper in either
the Southern District of California or the District of Arizona.

Hernandez does not compel a contrary conclusion; indeed,
it supports this construction. In Hernandez, 189 F.3d at 791,
we held that the crime of being "found in" the United States
was completed for venue purposes at the point of discovery
by INS authorities. Therefore, post-crime transportation of the
defendant by the government did not make venue proper in
the district where he was taken after arrest. See id. This hold-
ing is entirely consistent with the plain language of S 3237(a),
which makes no provision for new proper venues to be cre-

                               8507


ated after completion of the crime and apprehension by
authorities.

Ruelas-Arreguin insists that United States v. Ortiz-Villegas,
49 F.3d 1435 (9th Cir. 1995), and United States v. Ayala, 35
F.3d 423 (9th Cir. 1994), dictate a different conclusion, but
they do not. In those cases, we suggested that an alien can
avoid being "found in" the United States by departing after
his illegal re-entry. See Ayala, 35 F.3d at 425; Ortiz Villegas,
49 F.3d at 1437 n.2. That is undoubtedly true, given that the
crime is not completed until discovery by the authorities.
However, prior undetected criminal forays do not vitiate new
violations of S 1326. Nor does the fact that one may avoid a
crime by failing to complete it mean that the criminal act was
not commenced.

Ruelas-Arreguin also argues that 18 U.S.C. S 3237(a) is
trumped by 8 U.S.C. S 1329, the venue statute for S 1326
offenses, because S 1329 provides for prosecutions to be insti-
tuted "at any place in the United States at which the violation
may occur" or where the defendant "may be apprehended." 8
U.S.C. S 1329. Venue lying "at any place . . . at which the
violation may occur" is entirely consistent with the idea of a
continuing offense. Thus, S 1329 does not conflict with
S 3237(a).

Because a violation of 8 U.S.C. S 1326 for being "found in"
the United States without the Attorney General's permission
is a continuing offense which commences with entry and con-
cludes with discovery, venue was proper in either the South-
ern District of California or the District of Arizona. Thus, we
affirm Ruelas-Arreguin's conviction.

IV

[5] We remand for resentencing because the district court
erred when it withheld the additional one-level adjustment for
acceptance of responsibility under U.S.S.G. S 3E1.1(b)(1).

                               8508


Ruelas-Arreguin was entitled to the adjustment because he
made a timely and complete confession at the time of his
arrest.

Section 3E1.1(a) of the Sentencing Guidelines provides for
a two-level reduction in a defendant's offense level if he
"clearly demonstrates acceptance of responsibility for his
offense." U.S.S.G. S 3E1.1(a). If a defendant qualifies for this
two-level adjustment, the burden is on the government to
demonstrate that the defendant was not entitled to the addi-
tional one-level reduction under S 3E1.1(b). See United States
v. Colussi, 22 F.3d 218, 220 (9th Cir. 1994). Section 3E1.1(b),
in pertinent part, provides for an additional one-level adjust-
ment if "the defendant has assisted authorities in the investi-
gation or prosecution of his own misconduct by . . . timely
providing complete information to the government concerning
his own involvement in the offense." U.S.S.G.S 3E1.1(b)(1).
"The key inquiry for S 3E1.1(b) is whether the confession was
complete and timely." United States v. Guadalupe Blanco-
Gallegos, 188 F.3d 1072, 1077 (9th Cir. 1999) (citing United
States v. Eyler, 67 F.3d 1386, 1391 (9th Cir. 1995), and
United States v. Stoops, 25 F.3d 820, 823 (9th Cir. 1994)).

Here, Ruelas-Arreguin was entitled to the additional adjust-
ment because, during questioning at the Yuma border patrol
station, he made a timely and complete confession: he con-
firmed his prior criminal record and admitted by affidavit that
he was in the United States illegally, that he had been
deported previously, and that he had used a false name.
Because his timely post-arrest statements admitted "all of the
elements of the charged crime," the fact that those statements
were "not used at trial" is irrelevant, and the additional one-
point reduction under S 3E1.1(b)(1) is mandatory. Id.; see
also United States v. Chee, 110 F.3d 1489, 1494 (9th Cir.
1997) (affirming denial of adjustment where "defendant did
not timely provide complete information" concerning his
crimes). Thus, we reverse the denial of the additional-one
level adjustment under U.S.S.G. S 3E1.1(b)(1) and remand for

                               8509


re-sentencing with instructions to award the additional one-
level adjustment.

V

In sum, Ruelas-Arreguin was properly prosecuted in the
Southern District of California. However, he was entitled to
an additional one-level adjustment under U.S.S.G.
S 3E1.1(b)(1). Accordingly, we affirm his conviction but
vacate his sentence and remand for re-sentencing consistent
with this opinion.

AFFIRMED IN PART; VACATED AND REMANDED
IN PART.

                               8510



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