UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
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
Michelle S. Polom, Federal Defenders of San Diego, Inc.,
Diego, California, for the defendant-appellant.
David P. Curnow, Assistant U.S. Attorney, San Diego,
fornia, for the plaintiff-appellee.
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
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
prosecuted in the district where he illegally entered
versed unseen? Applying the continuing offense doctrine,
conclude that venue is proper in either district and
conviction. We remand for resentencing, however, because
Ruelas-Arreguin was improperly denied an additional one-
level adjustment for acceptance of responsibility.
Ruelas-Arreguin is a native and citizen of Mexico who
gally returned to the United States after having been
Upon reentry, he was transported through Southern
undetected in the bed of a pickup truck traveling east
Yuma, Arizona. INS border patrol agent Stephen Johnson
traveling westbound on Interstate 8 from Yuma to El
California when he received a radio dispatch regarding a
white pickup truck with a red stripe and camper shell
eastbound on Interstate 8. Agent Johnson was
two miles within California when he received the radio
sage. He sighted the pickup truck, crossed the median,
began following the vehicle for five or six miles
Interstate 8 from California into Arizona. At this
ing, only the driver was visible.
After the vehicle stopped in the parking lot of a local
taurant in Yuma, Agent Johnson approached the vehicle to
question the driver and, at that time, discovered
people, including Ruelas-Arreguin, laying on the floor
truck bed. After he had established their Mexican
Agent Johnson arrested the occupants of the vehicle and
arranged to have them transported to the Yuma border
station, where they were each interviewed by INS
and processed through the IDENT system. When questioned
at the Yuma station, Ruelas-Arreguin confirmed that he
been previously convicted for attempted murder. He also
signed a sworn affidavit indicating that he was in the
States illegally after having been deported and that he
used a false name.
Thereafter, Ruelas-Arreguin was indicted in the Southern
District of California on one count of being a deported
found in the United States in violation of 8 U.S.C.S
Following the government's case-in-chief,
presented no case other than a motion for judgment of
tal under Fed. R. Crim. P. 29 ("Rule 29"). The
deemed the Rule 29 motion timely but did not entertain
until after closing arguments and the reading of the
instructions. In that motion, Ruelas-Arreguin argued
venue was improper in the Southern District of
because he was "found" for purposes of S 1326
The district court rejected the asserted grounds for
but took the venue issue under submission. After the
returned with a guilty verdict, the district court
venue portion of the Rule 29 motion without prejudice
asked for additional briefing by sentencing.
At the sentencing hearing, the district court denied the
29 motion in its entirety without further explanation.
trict court also rejected Ruelas-Arreguin's request for
tional one-level downward adjustment for acceptance of
responsibility under U.S.S.G. S 3E1.1(b)(1). Instead,
trict court awarded only a two-level reduction under
S 3E1.1(a), observing that: "While Mr. Ruelas
deserving of the minus 2 for acceptance, the additional
basically being a convenience factor to the parties
is not warranted and the court will not award the
point." Ruelas-Arreguin was then sentenced to 63
imprisonment, to be followed by 3 years of supervised
The district court had jurisdiction under 18 U.S.C.S
and we have jurisdiction over this timely appeal
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
District of California, see United States v. Childs, 5
1328, 1331 (9th Cir. 1993), and we review the district
decision to withhold an additional one-level adjustment
U.S.S.G. S 3E1.1(b) for clear error. See United States
Villasenor-Cesar, 114 F.3d 970, 973 (9th Cir. 1997).
Initially, we must decide whether Ruelas-Arreguin pre-
served his objection to venue when he moved for a
of acquittal on grounds of improper venue at the close
government's case. Consistent with the uniform decisions
our sister circuits, we conclude that he did.
If a defect in venue is clear on the face of the
a defendant's objection must be raised before the
has completed its case. See Hanson v. United States, 285
27, 28 (9th Cir. 1960). However, as numerous circuits
recognized, if the venue defect is not evident on the
the indictment, a defendant may challenge venue in a
for acquittal at the close of the government's case.
United States v. Robinson, 167 F.3d 824, 829 (3d Cir.),
denied, 120 S. Ct. 118 (1999); United States v. Melia,
F.2d 70, 71 (4th Cir. 1984) (per curiam); United States
omon, 29 F.3d 961, 964 (5th Cir. 1994); United States v.
Brandon, 50 F.3d 464, 469 (7th Cir. 1995); United States
Black Cloud, 590 F.2d 270, 272 (8th Cir. 1979); United
v. Daniels, 5 F.3d 495, 496 (11th Cir. 1993) (per curiam).
Although we have not expressly adopted such a rule, see
United States v. Jensen, 93 F.3d 667, 669 n.2 (9th Cir.
("We express no view as to the proper disposition
of a motion
for acquittal for lack of venue, should one be made
close of the government's case-in-chief."), we have
less made room for it, see Gilbert v. United States, 359
285, 288 (9th Cir. 1966) (implying that venue objection
have been timely if raised in motion for acquittal).
line with the persuasive decisions of our sister
hold that venue objections made at the close of the
ment's case-in-chief are timely if the defect in venue
apparent on the face of the indictment.
In this case, the alleged defect in venue was not
on the face of the indictment. The indictment alleged
Ruelas-Arreguin was "found in" the United
States "within the
Southern District of California." On its face,
indictment alleged proper venue because it alleged facts
which, if proven, would have sustained venue in the
District of California. See United States v. Mendoza,
1155, 1156 (9th Cir. 1997) ("[O]nly the indictment
considered in pretrial motions to dismiss for lack of
and [ ] the allegations must be taken as true.").
Arreguin preserved his objection to venue when his
moved at the close of the government's case for a
of acquittal on the ground that venue was improper in
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
Although the venue objection may have been timely, venue
was proper in the Southern District of California. The
tution requires that venue lie in the district where a
committed. See U.S. Const. art. III, S 2, cl. 3; U.S.
amend. VI. This constitutional command is repeated in
Federal Rules of Criminal Procedure. See Fed. R. Crim.
The burden of establishing proper venue by a
of the evidence rests with the government. See United
v. Angotti, 105 F.3d 539, 541 (9th Cir. 1997).
 To decide whether venue was proper in the Southern
District of California, we "must initially identify
constituting the offense . . . and then discern the
the commission of the criminal acts." United States
Rodriguez-Moreno, 526 U.S. 275, 279 (1999). Under S
a deported alien may be convicted for either entering,
ing to enter, or being "found in" the United
States. See 8
U.S.C. S 1326(a)(2). They are three distinct offenses.
United States v. Pacheco-Medina, _______ F.3d _______,
50414, 2000 WL 622076, at *4 (9th Cir. May 16, 2000).
crime of being "found in" the United States is
when the "alien is discovered and identified by the
tion authorities." United States v. Hernandez , 189
791 (9th Cir. 1999), cert. denied, 120 S. Ct. 1441
However, the crime does not begin and end there.
 An "entry" into the United States is
required before a
person is "found in" the United States. See
2000 WL 622076, at *4. "Entry" into the United
"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
States v. Salazar-Robles, 207 F.3d 648, 650 (9th Cir.
In that sense, we have held that it is a
United States v. Ramirez-Valencia, 202 F.3d 1106, 1110
Cir. 2000) (citing United States v. Guzman-Bruno , 27
420, 423 (9th Cir. 1994)), even though the crime does
crystalize until official discovery and identification.
phrase T.S. Elliot, the crime's beginning is in its end,
end in its beginning.
 For such continuing crimes, "[v]enue may lie in
district in which the continuing conduct has
States v. Barnard, 490 F.2d 907, 910 (9th Cir. 1974);
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
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
18 U.S.C. S 3237(a).
 Here, Ruelas-Arreguin was undoubtedly
"found" in the
District of Arizona when he was identified and arrested
INS; however, because illegal entry is "embedded
" in the
"found in" offense, the crime commenced in the
District of California and continued until his
Thus, under 18 U.S.C. S 3237(a), venue was proper in
the Southern District of California or the District of
Hernandez does not compel a contrary conclusion; indeed,
it supports this construction. In Hernandez, 189 F.3d at
we held that the crime of being "found in" the
was completed for venue purposes at the point of
by INS authorities. Therefore, post-crime transportation
defendant by the government did not make venue proper in
the district where he was taken after arrest. See id.
ing is entirely consistent with the plain language of S
which makes no provision for new proper venues to be cre-
ated after completion of the crime and apprehension by
Ruelas-Arreguin insists that United States v.
49 F.3d 1435 (9th Cir. 1995), and United States v.
F.3d 423 (9th Cir. 1994), dictate a different
they do not. In those cases, we suggested that an alien
avoid being "found in" the United States by
his illegal re-entry. See Ayala, 35 F.3d at 425; Ortiz
49 F.3d at 1437 n.2. That is undoubtedly true, given
crime is not completed until discovery by the
However, prior undetected criminal forays do not vitiate
violations of S 1326. Nor does the fact that one may
crime by failing to complete it mean that the criminal
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
tuted "at any place in the United States at which
may occur" or where the defendant "may be
U.S.C. S 1329. Venue lying "at any place . . . at
violation may occur" is entirely consistent with
the idea of a
continuing offense. Thus, S 1329 does not conflict with
Because a violation of 8 U.S.C. S 1326 for being
the United States without the Attorney General's
is a continuing offense which commences with entry and
cludes with discovery, venue was proper in either the
ern District of California or the District of Arizona.
affirm Ruelas-Arreguin's conviction.
 We remand for resentencing because the district
erred when it withheld the additional one-level
acceptance of responsibility under U.S.S.G. S
Ruelas-Arreguin was entitled to the adjustment because
made a timely and complete confession at the time of his
Section 3E1.1(a) of the Sentencing Guidelines provides
a two-level reduction in a defendant's offense level if
"clearly demonstrates acceptance of responsibility
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
tional one-level reduction under S 3E1.1(b). See United
v. Colussi, 22 F.3d 218, 220 (9th Cir. 1994). Section
in pertinent part, provides for an additional one-level
ment if "the defendant has assisted authorities in
gation or prosecution of his own misconduct by . . .
providing complete information to the government
his own involvement in the offense." U.S.S.G.S
"The key inquiry for S 3E1.1(b) is whether the
complete and timely." United States v. Guadalupe
Gallegos, 188 F.3d 1072, 1077 (9th Cir. 1999) (citing
States v. Eyler, 67 F.3d 1386, 1391 (9th Cir. 1995), and
United States v. Stoops, 25 F.3d 820, 823 (9th Cir.
Here, Ruelas-Arreguin was entitled to the additional
ment because, during questioning at the Yuma border
station, he made a timely and complete confession: he
firmed his prior criminal record and admitted by
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
were "not used at trial" is irrelevant, and
the additional one-
point reduction under S 3E1.1(b)(1) is mandatory. Id.;
also United States v. Chee, 110 F.3d 1489, 1494 (9th
1997) (affirming denial of adjustment where
not timely provide complete information" concerning
crimes). Thus, we reverse the denial of the
level adjustment under U.S.S.G. S 3E1.1(b)(1) and remand
re-sentencing with instructions to award the additional
In sum, Ruelas-Arreguin was properly prosecuted in the
Southern District of California. However, he was
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
with this opinion.
AFFIRMED IN PART; VACATED AND REMANDED
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