United States v. Orona-Ibarra, 15-1176

• Decision Date: 03 August 2016
• Docket Number: No. 15-1176,15-1176
• Parties: United States of America, Plaintiff–Appellee, v. Oscar F. Orona–Ibarra, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

831 F.3d 867

United States of America, Plaintiff–Appellee,

v.Oscar F. Orona–Ibarra, Defendant–Appellant.

No. 15-1176

United States Court of Appeals, Seventh Circuit.

Argued October 28, 2015

Decided August 3, 2016

Jason M. Bohm, Attorney, Office of the United States Attorney, Urbana Division, Urbana, IL, for Plaintiff–Appellee.

Robert A. Alvarado, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant–Appellant.

Before Wood, Chief Judge, and Easterbrook and Hamilton, Circuit Judges.

Wood

, Chief Judge.

It is a crime for a noncitizen who has previously been removed to reenter the United States without the permission of the Attorney General. 8 U.S.C. § 1326(a)

. A person commits this crime in any location in the United States where she is “found.” Id. § 1326(a)(2). Another statute provides that venue in these cases is proper wherever in the United States the violation may occur or where the accused person “may be apprehended.” 8 U.S.C. § 1329.

Illegal re-entry is a “continuing offense” that is committed from the moment the defendant reenters the country until federal immigration agents gain actual (not just constructive) knowledge of her presence, her identity, and her unlawful immigration status. United States v. Rodriguez – Rodriguez , 453 F.3d 458, 461 (7th Cir. 2006)

. The violation occurs in any place where the defendant is located at the time federal immigration officials catch up with her, regardless of whether the defendant entered that district voluntarily. United States v. Herrera

–

Ordones , 190 F.3d 504, 509 (7th Cir. 1999).

Oscar Orona-Ibarra is a noncitizen who reentered the country after removal, in violation of section 1326

. He was arrested on unrelated charges in Texas and was “found” by federal immigration officials while in custody in Texas. Federal officials then transferred him from Texas to the Central District of Illinois, where he ultimately was charged with violating section 1326. We hold that this district was not a permissible venue, because he did not commit any element of the crime there: he did not reenter the country in Illinois, he was not “found” in Illinois, and he was not “apprehended” in Illinois. We therefore reverse the district court's judgment and remand for further proceedings.

I

The facts are uncontested. Orona-Ibarra is a citizen of Mexico who was living in the United States without proper authorization to do so. In 2006, federal agents in Illinois arrested him for attempting to deliver cocaine. On March 23, 2007, he pleaded guilty to possession of cocaine with intent to distribute. The federal district court for the Central District of Illinois sentenced him to 54 months' imprisonment followed by four years of supervised release. On July 14, 2010, after serving his prison term, he was removed to Mexico. A condition of his supervised release was that he not return to the United States.

Orona-Ibarra chose to flout this requirement. He reentered the United States without a proper visa on October 10, 2012, near Hidalgo, Texas, which is in the Southern District of Texas. He did not stay below the radar for long: on April 23, 2013, Texas state officials arrested him for possessing marijuana. He pleaded guilty and the state court sentenced him to nine months' imprisonment. He was incarcerated at Pam Lyncher State Jail, which also is in the Southern District of Texas.

While he was in prison, federal officials from Immigration and Customs Enforcement (ICE), an agency of the U.S. Department of Homeland Security, discovered him and interviewed him on October 22, 2013. Orona-Ibarra admitted in a sworn statement that he had been removed in 2010, and that he unlawfully reentered the United States in 2012. Based on this information, ICE lodged a detainer with the Texas state authorities. See 8 C.F.R. § 287.7

(authorizing immigration detainers). The detainer stated that Orona-Ibarra was present in the United States in violation of 8 U.S.C. § 1326 and requested that the state transfer Orona-Ibarra to ICE custody once his Texas prison term was completed. (ICE seems to have been aware that Orona-Ibarra was back in the United States as early as April 2013, when he was arrested. The record includes an ICE detainer filed on April 22, 2013; it does not reflect how ICE learned of Orona-Ibarra's presence. We focus on the October 22, 2013 interview and subsequent detainer because there is no dispute that ICE officials met with Orona-Ibarra in person and that Orona-Ibarra signed a sworn statement at that time. The difference in dates is irrelevant to our analysis.)

Shortly after ICE filed this detainer, Orona-Ibarra's federal probation officer in the Central District of Illinois became aware of his presence in the country. On November 21, 2013, that officer filed a petition to revoke Orona-Ibarra's supervised release based on the illegal reentry.

On January 16, 2014, Orona-Ibarra completed his Texas sentence. Rather than being released, he was immediately transferred into the custody of the U.S. Marshals Service, which delivered him to federal prison in Illinois to resolve the pending petition to revoke his supervised release. While Orona-Ibarra was in federal custody in Illinois, ICE re-lodged the same detainer, this time with federal officials in Illinois. On May 14, 2014, the district court for the Central District of Illinois sentenced Orona-Ibarra to time served for his supervised release violation and transferred him to ICE's custody.

A grand jury promptly charged Orona-Ibarra in the Central District of Illinois with unlawful reentry in violation of 8 U.S.C. § 1326

. Orona-Ibarra moved to dismiss his indictment for improper venue. (He erroneously cited Federal Rule of Criminal Procedure 12(b)(2), which covers dismissals for lack of jurisdiction, rather than Rule 12(b)(3)(A)(i), the venue rule. We disregard this technical error.) The district court denied his motion. Orona-Ibarra then pleaded guilty to unlawful reentry, reserving his right to appeal the court's ruling on venue. On January 28, 2015, Orona-Ibarra was sentenced to 48 months in prison. He now appeals from the court's rejection of his venue challenge.

II

For venue to be proper, “[t]he government must establish, by a preponderance of the evidence ... that the offense occurred in the district in which it was brought.” Herrera – Ordones , 190 F.3d at 509

. Where the facts are contested, we review the evidence “in the light most favorable to the government” to determine if “the government proved by a preponderance of the evidence that the crimes occurred in the district charged.” Id. (internal quotation marks omitted). In this case, the facts are uncontested; we have before us only a question of law, which we consider de novo.

United States v. Palumbo Bros. , 145 F.3d 850, 860 (7th Cir. 1998).

A

“The Constitution twice safeguards the defendant's venue right”: in Article III and again in the Sixth Amendment. United States v. Cabrales , 524 U.S. 1, 6, 118 S.Ct. 1772, 141 L.Ed.2d 1 (1998)

. Article III, Section 2, Clause 3, mandates that “Trial of all Crimes ... shall be held in the State where the said Crimes shall have been committed[.]” U.S. CONST. art. III, § 2, cl. 3. The Sixth Amendment specifies that “the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed[.]” Id. amend. VI. Federal Rule of Criminal Procedure 18

“echoes the constitutional commands,” Cabrales , 524 U.S. at 6, 118 S.Ct. 1772, by providing that “the government must prosecute an offense in a district where the offense was committed,” FED. R. CRIM. P. 18.

As the Supreme Court has explained, “[q]uestions of venue in criminal cases ... are not merely matters of formal legal procedure. They raise deep issues of public policy in the light of which legislation must be construed.” United States v. Johnson , 323 U.S. 273, 276, 65 S.Ct. 249, 89 L.Ed. 236 (1944)

. While the Supreme Court has not “set forth ... a comprehensive discussion of the values protected by the constitutional venue provisions,” it has identified some. United States v. Muhammad , 502 F.3d 646, 651 (7th Cir. 2007). These include “the protection of a defendant from prosecution in a place far from his home and the support system that is necessary to mount an adequate defense.” Id. (citing United States v. Cores , 356 U.S. 405, 407, 410, 78 S.Ct. 875, 2 L.Ed.2d 873 (1958) ). As Justice Story explained, the Constitution's venue provisions “secure a party accused from being dragged to a trial in some distant state ... subjected to the verdict of mere strangers ... who may ... cherish animosities or prejudices against him.” Joseph Story, Commentaries on the Constitution § 925 (Carolina Academic Press reprint 1987) (1833). Further, “a trial in a distant state” could result in “oppressive expenses” or “the inability of procuring proper witnesses to establish his innocence.” Id. ; see also United States v. Palma-Ruedas , 121 F.3d 841, 848 (3d Cir. 1997) (Alito, J., dissenting) (discussing Justice Story's Commentaries ), rev'd sub nom.

United States v.

Rodriguez

–

Moreno , 526 U.S. 275, 279, 119 S.Ct. 1239, 143 L.Ed.2d 388 (1999).

Given the nature of the right, “there is no ... mechanical test to determine constitutional venue. Rather, the test is best described as a substantial contacts rule that takes into account ... the site of the defendant's acts, the elements and nature of the crime, the locus and effect of the criminal conduct, and the suitability of [the] district ... for fact-finding.” Muhammad , 502 F.3d at 652

(internal quotation marks omitted). These are real limitations: the Court has cautioned that “venue provisions in Acts of Congress should not be so freely construed as to give the Government the choice of ‘a tribunal favorable’ to it.” Travis v. United States , 364 U.S. 631, 634, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961) (quoting Johnson , 323 U.S. at 276, 65 S.Ct. 249 ).

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