United States v. Delgado-Nunez

REAVLEY, Before SMITH and DENNIS, Judges. Circuit SMITH, Judge: E. JERRY Circuit I. (“Delga-

Sergio Delgado-Nuñez Luis do”), resident of the permanent then a novo claiming that de pute, fol- States, deported ar while the drug applies, conviction. review lowing felony be abuse of discretion. gues that it should illegally reentered the United he rule, other having “constitutional and green general card. After As a using his old offense, reviewed de novo. legal questions” for an unrelated he are been arrested Brown, 907, 912 Big Spring, v. 250 F.3d agent an INS was found United (5th denied, 1111, 121 Spring Cir.), is 531 U.S. Texas, September Big cert. (2001). But, 854, of Texas. 148 L.Ed.2d District S.Ct. the Northern questions concerning ven review all “[w]e custody Big Spring, Delgado inWhile abuse of discretion stan ue under the had agent INS that he admitted to the however, In practice, “[l]ittle dard.” illegally. reentered the United of ... on whether we label review turns September 1997 to September From question abuse of discretion particular enforcement cus- in state law he remained novo, or for an abuse-of-discretion stan de eventually He tody at various locations. of law is dard does not mean mistake authorities to by state transported correction.” Koon v. beyond appellate District of Antonio in the Western San States, 81, 100, 116 S.Ct. 518 U.S. Untied Texas. (1996). Thus, abuse 135 L.Ed.2d 392 legal ques purely of review of discretion was convict Delgado In December by Delgado those raised is tions such-as ed, for States District Court the United novo, effectively district “[a] de Texas, illegal of the Western District abuses its discretion definition under 8 in the United States presence law.” Id. when it makes an error of (1994) and received a 150- U.S.C. the convic appeals sentence. He month sentence, claiming that trial tion and B. Amend District his Sixth

Western violated The district court held that the district court rights, ment venue by failing to venue waived his upward from the sen departing erred during it trial. “A defen raise before that, Ap tencing guidelines, and by an lacks dant indicted instrument which 466, 120 prendi Jersey, v. New 530 U.S. (2000), allegations sufficient to establish venue L.Ed.2d 435 his S.Ct. by failing to challenges future waives required allege indictment was object before trial. situations where felony of a prior deportation was the result error, made but the im adequate allegations we affirm. are Finding conviction. only apparent of venue becomes

propriety case, a government’s at the close of the II. address the error ob time, jecting preserving at that and thus A. appellate review.” the issue for United alacio, v. 267 F.3d Delgado’s address venue States Carreon-P We first Cir.2001). claim. The standard of review is dis- 392-93 Asibor, law” “venue and sever- constitutional from United States added); (5th Cir.1997) (emphasis holding that the latter ance decisions” and cf. Hemmingson, discretion). States v. 355-56 only are reviewed for abuse (5th Cir.1998) “questions (distinguishing key point perverse under Car- would create severe incentives reon-Palacio, objection at the close of trial for criminal in any defendants case in solely appropriate improprie legitimacy where “the there are doubts over the only at the A ty apparent of venue becomes venue. defendant would be able to game system close of the case.” Id. The and obtain a free second Cloud, opinion acquittal by States v. Black shot at an waiting his trial (8th Cir.1979), 590 F.2d 270 on which Car- to conclude and challenging then venue in relied, unequiv reon-Palacio is even more the event of conviction. Even if—like point. Delgado—he ocal on this See was well poten- aware of the (relying 267 F.3d at 392 on Black Cloud as tial defect in every he would have “helpful persuasive” authority). It incentive to forego improper venue objections held that “venue are waived un claim until after the trial is over. Accord- prior except ingly, to trial” in all Delgado any less made cases waived claim to im- a proper “when indictment contains venue.

allegation of venue so that the defendant has no notice venue until the III. of defect of Cloud, government rests its case.” Black Delgado argues that the district added). (emphasis 590 F.2d at 272 Four improperly departed from the sen adopted other circuits have rules similar to tencing guidelines giving him a 150- Cloud, holding that of Black that the ven departure month sentence. A from the ue issue is waived when not raised before guidelines for is reviewed abuse of discre during or trial unless the defendant lacked Nevels, tion. United States v. 160 F.3d question.2 notice of the venue defect in 226, 229 “There is no if judge provides abuse discretion problem Delgado

The for is that acceptable departure reasons and the underlying claim—particular the facts his degree of at ly departure that him is reasonable.” Id. the INS had first discovered al 229-30. 1997 the Northern District—were ready known to him at the start of trial. sentencing guideline, The relevant Therefore, object his failure to at that time 4A1.3, upward depar- U.S.S.G. allows any during time trial is decisive. He tures “reliable information indicates that certainly enough had “notice of a defect history category the criminal does not ad- assert,

venue” to be able before equately of the de- reflect seriousness appeal. the same claim he now raises on past fendant’s criminal conduct or the likelihood that the defendant will commit holding

A that not crimes.” such circumstance is did waive other One claim “had previously these circumstances where re- Sandini, "[¡Improper 2. See United States v. that be waived when (3d 1986) (holding objec apparent 127 Cir. that venue it is on the face of the indictment elsewhere”); not that the case be tried tion raised before the close of trial should Brothman, F.2d waived unless "the defendant has no notice United States v. "[wjhere (2d 1951) facially proper allegation (holding the in that of venue is in Cir. that defective”); Melia, venue, going fact United States v. dictment discloses lack of to trial (4th 1984) (holding objec without to venue is a waiver” and may follow if the defen tions to waiver must be made before trial "that the same result trial”), during apparent the defect "when the defect is on the face of dant is warned of indictment”); Jackson, grounds, overruled on other United States v. United States Reed, (2d Cir.1985). Cir.1973) (holding 773 F.2d 477 extremely light accordingly. sentence for a be reduced As both sides ceived an 4A1.3, p.s. recognize, Delgado’s argument serious U.S.S.G. is barred offense.” Fifth existing Supreme Court and Cir- Delgado had an extensive criminal precedent. cuit include three history. His offenses DWI very convictions for which he received require does Apprendi for which no criminal light sentences and conviction, than the fact of a “[o]ther history assessed. One of the points "were penalty fact that increases the for a and, in in an accident had resulted DWI’s statutory beyond prescribed crime another, driving over one Delgado was jury, maximum must submitted to the be per hundred miles hour. 'Even consider proved beyond a reasonable doubt.” alone, certainly it was ing the DWI’s Apprendi, U.S. S.Ct. court to conclude that unreasonable for the held, however, earlier had in a Court history criminal them exclusion from the one, 1326 case similar to this underestimation of “the serious led to an “required prove is not criminal con past ness of the defendant’s jury previously that the defendant was duct.” 4A1.3. Under a deferen U.S.S.G. deported subsequent to a conviction for standai’d, tial abuse of discretion there is aggravated felony.” commission of an Al no reason reverse. States, mendarez-Torres v. 523 224, 234-35, 1219, U.S. 118 S.Ct. 140 Relying by on some comments (1998) omitted). (quotation L.Ed.2d 350 court, the district claims that Apprendi We have established that did not departure judgment was based on a that Almendarez-Torres, overrule which there not, in his offenses “had the district court’s good fore remains law. See United States view, punished” adequately been rather Dabeit, (5th Cir.2000) 984 than on an assessment of the criminal (holding Apprendi “expressly that de history. Even if this characterization of Almendarez-Torres,” clined-’to overrule accurate, reasoning the court’s is there binding), which therefore remains cert. de would be abuse of discretion. The com nied, 531 U.S. S.Ct. guideline ment to- the relevant notes that (2001). L.Ed.2d 126 courts can take into account the fact that a might had what defendant “received now AFFIRMED. extremely be considered lenient treatment 4A1.3, in the’past.” U.S.S.G. comment. DENNIS, Judge, dissenting: Circuit guidelines’ commentary given con respectfully majori- I dissent from the if trolling weight plainly it is not erroneous ty’s finding decision that Delgado-Nunez guidelines. inconsistent Stin improper waived claim to venue. States, 36, 42-45, son v. United 508 U.S. Moreover, because venue improper (1993). L.Ed.2d S.Ct. the Western District of Texas where he tried, I would reverse and vacate the IV. district court’s decision. that, Delgado argues Ap prendi, required right his indictment was to al “A defendant’s to be tried lege prior deportation that his was the district in which place the crime took finds felony result of a conviction and be its roots in both the Constitution and fed- so, III, statutory cause it did not do his sentence eral should law.”1 Article Section 1. United. States v. (i.e., by asserting states that shall be not “[t]rial Clause his trial).6 But,

held in the State where the said Crimes noted, as this court has shall have been committed.”2 Further- accurately broad waiver rule “does not re- more, the Sixth Amendment to the United is, flect the law in this circuit.”7 That provides Constitution all “[i]n “[wjaivers rights by of venue silence are criminal shall en- prosecutions, the accused readily not to be inferred”8 and waiver joy right by impartial to ... exceedingly “has an application narrow jury of the and district State wherein when a gov- criminal defendant claims the committed, have which crime shall been prove ernment has failed to proper ven- previously district shall have been ascer- fact, ue.” “all circuits reaching this by Similarly, law.”3 tained Federal Rule question mitigated have the harness of provides Procedure 18 Criminal by holding rule th[e] [waiver] venue by “[ejxcept permitted as otherwise stat- objections only are waived in- ‘when the rules, prosecution ute or these shall ... clearly dictment [the reveals venue] be had in a district in offense defect but the defendant fails to ob- was committed.”4 ”10 words, ject.’ In other Rights

Waiver Venue object prior waived failure to to trial if alleged “the defect in appar- venue was not Despite the constitutional dimension of ent on the indictment.”11 “On finding the standard for waiver of face face, ... allege[s] its indictment prop- [an] rights is more relaxed than the stan- which, er venue it allege[s] facts [if] dard for waiver of other constitutional is, rights.5 proven, That ... waive would venue in” the sustain[ ] right “only to venue silence or inaction district alleged,12 as the indictment Const, III, trial.”) added); object 2. (emphasis U.S. art. cl. 3. to before 2 Wright, Charles Alan Federal Practice and Pro- Const, 3. U.S. amend. VI. cedure, (3d 2000) ("If § 306 ed. the fact of improper apparent venue is the on face of the 4. Fed.R.Crim.P. 18. information, indictment or a defendant held by failing object prior to have waived venue to Carreon-Palacio, 5. at 267 F.3d 391. going pleading guilty. to to trial or If there is venue, Id. proper allegation proof a but the support allegation, objection fails to the the Id. 392 n. 28 can be raised at close of all the evi- the dence.”). 391. See also United States v. Stratt ton, (5th 649 F.2d 1078 n. 17 Cir. Unit 12.Ruelas-Arreguin, (empha 219 F.3d at 1060 A.1981). Bohle, added); v. sis United States 445 F.2d (7th Cir.1971) ("An alleges 59 indictment Gross, 9. United States v. 276 F.2d which, alleges venue when it facts if (2d 1960). Cir. venue.”), proven, would sustain overruled on Sandini, 10. United States v. Lawson, grounds, other v. United States (3d 1986) Price, (quoting Cir. United States v. 1981). Wayne F.2d 299 Cir. R. Cf. (2d 1971)) (emphasis add al., Procedure, 16.1(h), LeFave et Criminal ed). (2d ("[Wjhere 1999) at 508 ed. the indictment alleged in the or information events or results Ruelas-Arreguin, 11. United States v. properly district that would not establish ven (9th Cir.2000) added). (emphasis proven, ue there even if the defendant must See also 267 F.3d at 392-93 object pretrial.”). (“A by indicted an instrument example allegations An of an indictment defective on lacks to establish sufficient Bohle, any challenge by failing appears venue waives future its face where a defendant respect any argument motions for hold pretrial considered may be venue, must to trial. The allegation and the must be raised [ ] lack of true.”13 majority be taken as is not whether key point for the facially proper, but the indictment Here the indictment states: a any had notice of whether the defendant 29, 1999, in September That oil or about facially despite defect potential Texas, Defen- District of the Western Moreover, majori- the proper indictment. dant, DELGADO-Nu- SERGIO LUIS waived Delgado-Nunez ty concludes alien, nez, Delgado, an Sergio Luis a/k/a objecting objection to venue entered, enter, and was attempted to poten- had notice of a pre-trial because he having previ- found in the United States going to trial. tial defect venue before admission, excluded, ously been denied rationale, majority upon relies For its therefrom on or deported, and removed 31, 1994, “helpful persua- and language about October broad Circuit, the consent Eighth Defendant had not received case from the United sive” of the Attorney General United Far from endors- States Black Cloud.15 to the reapply for admission waiver, majority’s ing the broad view States, voluntarily in -the however, merely the court Black Cloiid unlawfully, in violation of reason articulated lack of notice as one Section(s) Code, Title 8 United States be why indictments need not defective i.e., “when an challenged prior to face, proper allegation does not reveal On its indictment indictment contains is, allega- in venue. That defect that the defendant has no notice venue so true, venue tions in the indictment were of a of venue until the defect would exist in the District Tex- case, Western objection timely if rests its Thus, Delgado-Nu- as. I find that would The made at the close of the evidence.”16 to venue nez did not waive his (a involving in Black Cloud case prior to trial.14 failing to raise the issue illegal receipt of a firearm a convicted felon) not, here, majority does however, did as majority, takes a much defendant’s venue and seems to find a waiver of the approach broader waiver during accurately piracy in New York time trial” does not reflect was arrested for aircraft (his place During and indicted in Indiana last the facts in the record. the bench residency), despite statutory the venue re- Delgado-Nunez asked for and was quirement that "the trial shall be in the dis- granted permission to file a Rule 29 written ... is arrested or is trict where the offender acquittal written motion for after trial. The brought,” ... [is] first unless "such offender motion, detailing objection the to district, any brought not so arrested or into judge the district rendered his filed before an indictment or information [in case] See, e.g., Ruelas-Arreguin, 219 verdict. F.3d may be filed district of the last known in the at 1059. Bohle, the residence.” 445 F.2d at 57. There objec- court found the defendant waived his 15. 590 F.2d 270 by waiting the tion to venue until the close of government's "the indictment case because Perez, at 272. States v. 16. Id. which, alleged proven, would not facts even if (3d Cir.2002) ("Where an indictment sustain venue.” at alleges venue on its face without an obvious Mendoza, 13. United States v. F.3d defect, facially no notice that a defendant has 1997). defective, proper allegation fact of venue in thus there can be waiver until the and Delgado-Nu majority's 14. The statement that case.”). government's close of the object [prior trial] nez failed "to or at object waited until rights because he the of the evidence.”21 “[AJpplying the ratio- Instead, Cloud,” close of the case. nale of Black the court found no the court found that the defendant did not despite waiver the defendant’s knowledge challenge government waive his the that he was arrested and first indicted prove had failed to that he received the Carolina, in North indict- “[t]he firearm the district North Dakota alleged possession marijuana ment prosecution brought where the be- Texas, the Western District of Lopez thus specifically charged cause the “indictment had no complain basis to of venue until the having received the [the defendant] government rested.”22 Judge Emilio in question firearm in the District of North Garza, in separate a opinion, urged the Dakota.”17 Id. at 271-72. majority to adopt the same broad waiver majority rationale the court, accepts importantly, More in its most here: flags for pronouncement “[R]ed recent on the waiver-of- venue would have been issue, Carremv-Palacio, expressly venue clear to [the defendant] to trial. employ majority’s did not the ap- broad [The defendant] was arrested in North waiver, proach despite urging the of Carolina all and three defendants were Judge Emilio in a specially Garza concur- initially Carolina, indicted in North sug- Carreon-Palacio, ring In opinion.18 the gesting North Carolina as the situs of the defendant, marijuana transporting after charges. government then dismissed Carolina, from Texas to North was arrest- the indictment and re-indicted the defen- ed and first indicted North Carolina essentially dants on charges the same possession with intent to distribute.19 Al- the Western District of Texas. cir- This though government the dismissed the put cumstance [the defendant] on notice of North Carolina indictment and re-indicted potential problem despite gov- the defendant in the Western District of proper allegations ernment’s Texas, gov- the defendant waited until the the indictment.... I would hold that Lo- complain ernment rested to venue.20 pez objection waived his to venue.”23 addressing the defendant’s venue chal- Moreover, majority ignores lenge appeal, on quoted this court from closely analogous equally “helpful and Black Cloud: an indictment con- “[W]hen case, persuasive” Ninth Circuit allegation tains of venue so that Ruelas-Arreguin, States v. defendant has no which the notice of defect of case, expressly venue until court there adopt rests its did not timely approach made at the close majority broad to waiver that the 17.The same is true of least two of the four 390-94. See, by majority. other circuit cases cited Sandini, e.g., United States v. 19. Id. 385. (3d 1986) (The 127 defendant "has not venue, right object waived his to 20. Id. Pennsylvania venue in the Western District of properly alleged in Counts II and IV of 21. Id. at 393. Melia, ...”); the indictment United States v. 70(4th Cir.1983) (Finding no waiver 22. Id. objection because "[t]he rule that the must be applies only made before trial defect when the J., (Garza, concurring) (empha- 23. Id. at 394 apparent on the face of the indictment” and added). "[tjhere sis allegation here was no defective of indictment.”). venue in Melia's attorney general. have found a Riielas-Arreguin, advances here.24 the Courts offense, court addressed whether a defendant continuing 1326 crime to be a charged very with the same crime at issue commencing illegal reentry with and com- here, illegally being found reentering and pleted upon being “found” in the United in the United without authorization Because a crime is com- States.29 attorney general, from the could be tried a illegally mitted when reenters California, in the Southern District of even country con- the without authorization and though in” he was “found and arrested by immigration tinues until he is “found” objected Arizona.25 As the defendant to authorities,30 venue could have been case-in-chief, government’s venue after the anywhere Delgado-Nunez might have began analysis by examining court the its being been “found” the INS.31 objec- whether the defendant waived his Here, Delgado country in re-entered the tion to venue.26 Because the defect Texas, apparent was not on the Laredo the Southern District of face (i.e., indictment the indictment suf- alleged early Texas late 1996 or 1997. Accord true, INS, ficient facts would have sus- ing to the it first him in discovered tained venue the Southern District of Septem the Northern District of Texas in California), found that Ruelas- ber of 1997. State law enforcement offi Arreguin preserved to venue cials moved him to within various locations by moving at the close of the Louisiana and Texas until when case.27 Agent Niles encountered him and indicted Antonio, Texas, him in San the Western majority’s approach essentially re- Delgado-Nunez’s District of Texas. government lieves the of its burden of early whereabouts late 1996 or between proof on an essential element of the (when country) he reentered and this example, offense.28 For here the defen- (when September 1997 charged dant is he was first discov 1326 crime of INS) illegally reentering largely and ered are found unaccounted trial, At States without the consent of the for. introduced conviction.”); 24. 219 Toomey, F.3d 1056 United States v. (S.D.N.Y.1975) (“Venue F.Supp. necessary part government's 25. Id. at 1059. case.”); al., Wayne R. LeFave et Criminal Procedure, (2d ed.1999) 16.1(g), Id. at 1060. at 499-500 (footnotes omitted)("In system the federal states, majority simply the vast venue is prerequisite that the defendant choose pretrial; offense, challenge part it is viewed as 28. “Venue is an element of the [and] prosecution prove the case that the must prosecution always bears the burden of trial.”). proving that the trial is in the same district as the crime's commission." Ruelas-Arreguin, 219 F.3d at 1061. F.3d at 390-91. See also United Cir.1984) Winship, 724 F.2d (“Venue offense; pp. is an element 30. See discussion 503-505. infra prosecution always prov bears the burden of ing that Delgado-Nunez essentially argues the trial is in the same district as the commission.”); Jones, brief, crime's point United States v. in his "Until did not (7th Cir.1949) ("One present of the know whether the Government would tilings the Government has the burden of evidence that he was found in the Western proving part agents is venue. It is an essential District before INS found him in it, Reply Government's case. Without there can be 1997.” Br. at 11. during Delga no that time begun evidence that States in completed one district and another, in in or in present do-Nunez was the Western Dis committed more than one district, may inquired Texas,32 prosecuted be of and trict in as was done Ruelas- in any district in which such offense was Thus, Arreguin.33 given continued, begun, completed.”37 facially proper allegation of venue in the Western District of Texas the indict government The argument makes no ment, Delgado-Nunez penal should not be and introduced no evidence at trial that putting government ized for to its bur Delgado-Nunez either entered or attempt- proof. den of ed to enter the United States the West- ern District of government, Texas. Improper Venue instead, Delgado-Nunez contends that was waiver, I no I Because find must exam- “found in” the District of Western Texas was, nonetheless, ine whether prop- Agent when Niles encountered him in San iner the Western District of Texas. As Antonio in government 1999. The argues above, explained venue is constitutionally that although -initially the INS identified statutorily required where the crime the Defendant in the Northern District of or offense is lan- committed.34 “The clear proper Texas venue is in the 1326(a)(2) § guage in 8 provides U.S.C. Western District of Texas because the of- separate three upon occasions which a de- illegal one, fense of reentry is a continuing 1) ported may alien commit the offense: making proper anywhere Delgado- States; illegally when he enters the United anywhere Nunez went or he was trans- 2) attempts illegally when he enter the ported until the time of his arrest 3) States; any or when he is at Also, government contends venue is time found the United States.”35 Sec- proper the Western District because the tion 1329 of provides Title 8 further crime, special venue statute for law, “[notwithstanding other such anywhere allows for venue the de- prosecutions may “may or suits be fendant apprehended.” instituted at be any place United States which the Although this circuit has not addressed may violations per- occur or which the when a defendant “found in” the United charged son awith violation under section purposes previ- it has 1325 or 1326 of appre- this title be ously concluded that the “found in” crime hended.”36 Also relevant is the venue continues until the INS discovers the de- offenses, statute for continuing pro- fendant, purposes albeit for of the Sen- “any vides that against Moreover, offense tencing Guidelines.38 the Ninth fact, Arizona, appeal, even on dant before his arrest in was trans- argument Delgado-Nunez raises ported through no the Southern District of Cali- fornia.). ever in the Western District of Texas being found in the Northern District in (ad- VI; upon argument but instead relies its 34. U.S. Const. amend. Fed.R.Crim.P. 18. below) dressed proper venue was in the Delgado-Nunez Santana-Castellano, Western District because 35. United States v. there, present 1996). after "found in” the F.3d Northern District. 36. 8 U.S.C. 1329. Ruelas-Arreguin, 219 F.3d at (Although the Ninth Circuit in 37. 18 U.S.C. this case found waiver, it held that venue was California, Santana-Castellano, the Southern District of 38. United (5th Cir.1996) ("[W]e continuing 1326 is a offense and the defen- hold that crime is that the conclude We very thorities. recently addressed has Circuit only for not point at that completed in us now before question same Sentencing and limitations Hernandez, statute of similarly and States v. United for venue. but also purposes, Guidelines crime contin- in” that a “found concluded unfair produce otherwise would To hold by is discovered until the ues example, venue results. For Hernandez, and absurd defendant, the the INS.39 choice” “government’s the become would traffic Oregon on was arrested who guarantee. than a constitutional rather Oregon violations, while in interviewed was scenario, a de- government’s the Under who deter- by agent an INS prison state and again be “found” could fendant illegally was the defendant mined that was alien who deported again. Or of 1326.40 violation United States the country to various the around moved was transferred After the defendant prosecuted, could institutions be penal out- Washington for an prosecuted and option, there, anoth- warrant standing state arrest foot.44 the alien set districts where him and again interviewed agent er INS illegally that he was similarly determined in Hernandez also addressed The court violation States United seems which issue under the venue of his state Upon completion § 1326.41 the defendant prosecution to allow by sentence, was indicted the defendant under and apprehended, is he wherever Wash- statute, District of the INS the Western offense venue continuing Concluding that the crime ington.42 wherever prosecution allows in” the United States being continued, “found or com- begun, was the offense is until the defendant § 1326 continues regard pleted. With INS, the Ninth Circuit by discovered not ‘apprehended’ is “being concluded The court improper.43 to be found venue defendant] [the with which the crime reasoned as follows: is place apprehension charged and the where the necessarily the district found in the United not

The offense of The court “de- crime committed.”45 alien is discovered an States ends when provide for to read section cline[d] au- immigration and identified 39. 189 F.3d in' the previously deported alien is 'found physical presence is his United States when immigration au noted discovered and 40. Id. thorities, illegality knowledge of the and the through of dili presence, the exercise of his 41. Id. authorities, gence typical enforcement lawof immigra reasonably to the be attributed can 42. Id. authorities.”; in' 'found violation "[A] tion date the alien continuing until the violation Id. authorities...)" by immigration is discovered Reyes-Nava, 169 States v. Un ited v. Herr- United States at 791. See also Cir.1999) ("[A] (5th previously F.3d Cir.1999) era-Ordones, deported is 'found in' the United alien in” the United (holding is "found alien presence and physical is discovered when his authorities.”); the INS purposes of "when by immigration United noted Corro-Balbuena, presence in the States v. his both discovers (5th Cir.1999) (A "begins at the identity offense of his knows States and illegally the coun reenters status, time the defendant illegal”). presence here complete unless try and does become in the is found the INS until the defendant Hernandez, States.”) a district other than where the illegally 1997 in Big Spring, Texas—the ‘found in’ crime the United States Northern District.52 govern- Because the was committed.”46 respect With to ment has introduced no evidence to show rejected the court idea that Delgado-Nunez was in the Western defendant could be prosecuted wherever District of Texas at some time up, he ended as a 1326 violation ends being in” “found the Northern District of by when the alien is discovered the INS.47 in September Texas I conclude that continuing completed offenses are “[E]ven improper venue was in the Western Dis- concluded, point.”48 some The court Texas, trict of and would reverse and va- “Neither the Constitution nor section 3237 cate the judgment district court’s to the permits in a location which the contrary. defendant happens to be after the crime completed, was unless the defendant be- continued,

gan, or completed his crime in

that venue.”49

I find the rationale of the Ninth Circuit wholly

to be both persuasive50 and consti-

tutionally Here, mandated.51 the evidence Delgado deported

showed that had been

1994; that country he reentered the either January by December 1996 or RELIABLE CARE, HOME HEALTH card; using green old at Big INC.; Age, Jr., Louis T. Plaintiffs- Texas, Spring, gave a he statement to an Appellants-Cross-Appellees, agent INS in September admitting that he had previously been removed from Thus, by the United States the INS.

evidence indicates that the INS was UNION CENTRAL aware INSURANCE or should have been aware with COMPANY; al., reasonable et diligence country Defendants, 46. Id. 792. San Antonio. While lack of continuous custo- dy Delgado-Nunez is a difference from Hernandez, Id. at 790. the fact remains that aif “found complete in” violation is when the INS knows illegality presence of the of an alien’s Id. at 791. in this country, transportation then further of the defendant into different districts either the state or federal is irrelevant for purposes of venue. Delgado's 50. The Government contends that Hernandez, govern- case is not like as here the “Congress power provide lacks for trial custody ment was not in continuous is, district other than that discovering which the defendant after first him. That offense was Agent committed....” Charles Alan Delgado-Nu- when Niles encountered Procedure, Antonio, Wright, Federal Practice & nez in San he had be released on (Supp.2002). Any at 8 other determination bail and had to be re-arrested the Bexar implicate protec- County would severe Constitutional Sheriff. The Government therefore suggests tions afforded the Sixth Amendment. See 1329's allowance of venue Hernandez, 189 F.3d at 792. where apprehended the defendant is in this case and that venue existed in the Hernandez, 791; Delgado-Nunez Western District because 52. See also 189 F.3d at Ben como-Castillo, custody not in when Niles encountered him in 176 F.3d at 1303-04.

Case Details

Case Name: United States v. Delgado-Nunez

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 20, 2002

Citation: 295 F.3d 494

Docket Number: 01-50438

Court Abbreviation: 5th Cir.