United States v. Andres Ayon-Brito, 981 F.3d 265

Andres Abelino Ayon‑Brito, a Mexican national, was removed from the U.S. in 2010 and again in March 2013 and never obtained permission to reenter.
After the 2013 removal he reentered the U.S.; at unspecified times he returned to Virginia and was encountered by Fairfax County police on three occasions (Sept., Oct., Nov. 2014) using an alias while trafficking drugs.
In December 2014 he was arrested in Cumberland County, Middle District of Pennsylvania; his true identity and immigration status were discovered there, which the indictment described as where he was “found.”
A federal grand jury in the Eastern District of Virginia (EDVA) indicted him under 8 U.S.C. § 1326(a) for unlawful reentry, alleging both the Virginia encounters and that he was “found” in Pennsylvania.
Ayon‑Brito moved to dismiss for improper venue (arguing the offense occurred where he was ‘‘found’’ in Pennsylvania); the district court denied the motion, held a bench trial, convicted him, and he appealed only the venue ruling.

Issue	Plaintiff's Argument (Ayon‑Brito)	Defendant's Argument (United States)	Held
Proper venue for prosecution under 8 U.S.C. § 1326(a)	Because the indictment alleges he was “found” in Cumberland County, PA, the offense occurred there and venue is proper only in the Middle District of Pennsylvania	§1326 is a continuing offense (begins at reentry and continues until found); venue is proper in any district where the offense began, continued, or was committed, including EDVA where he was present post‑reentry	Court held §1326 is a continuing offense; venue was proper in EDVA because Ayon‑Brito was present there during the ongoing violation
Legal import of the statutory term “found” in §1326(a)	“Found” is an element satisfied where authorities identify the defendant and his illegal status (here, in PA)	“Found” is not an independent conduct element but marks the end of the continuing reentry offense; the conduct element is the reentry/presence in the U.S.	Court held “found” is not a distinct conduct element; it authorizes proving reentry by showing the alien was located/found anywhere he was present

Richardson v. United States, 526 U.S. 813 (identifying conduct elements is first step in venue analysis)
Rodriguez‑Moreno, 526 U.S. 275 (determine nature of crime then location of criminal acts for venue)
Cabrales, 524 U.S. 1 (venue requires locating where elements occurred)
United States v. Cores, 356 U.S. 405 (continuing crime's locality extends over area through which offender operates)
United States v. Johnson, 323 U.S. 273 (venue and the Framers’ focus on trial where crime committed)
United States v. Rodriguez‑Rodriguez, 453 F.3d 458 (7th Cir.) ("found" authorizes proving reentry wherever alien is present; crime is being in the U.S.)
United States v. Ruelas‑Arreguin, 219 F.3d 1056 (9th Cir.) ("found" embeds entry; reentry may be proved by being found)
United States v. Ayala, 35 F.3d 423 (9th Cir.) (elements of §1326: alien, prior removal, reentry/attempted reentry, lack of permission)
United States v. Are, 498 F.3d 460 (7th Cir.) (discusses characterization of "found" and discovery of identity)