USA. v. Ordones

• Decision Date: 19 August 1999
• Docket Number: D,No. 98-3261,HERRERA-ORDONE,98-3261
• Citation: 190 F.3d 504
• Parties: (7th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DARIUSefendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 504

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

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DARIUS HERRERA-ORDONES, Defendant-Appellant.

No. 98-3261

United States Court of Appeals, Seventh Circuit

Argued March 29, 1999

Decided August 19, 1999

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 97-117-CR--David F. Hamilton, Judge. [Copyrighted Material Omitted]

Before RIPPLE, ROVNER and EVANS, Circuit Judges.

RIPPLE, Circuit Judge.

In 1994, Darius Herrera- Ordones was deported from the United States after he had been convicted of several drug offenses. He later reentered the United States without permission and remained here illegally. In 1997, he was convicted for being an alien found in the United States after deportation and illegal reentry. See 8 U.S.C. sec. 1326(a), (b)(2). At a bench trial, Mr. Herrera-Ordones stipulated to all the essential facts and to the essential elements of the crime. The only issue he contested at trial was whether venue was proper in the Southern District of Indiana. The district court held that venue was proper in the Southern District. It then found Mr. Herrera-Ordones guilty of the charge of illegal reentry and sentenced him to 96 months of imprisonment.¹ On appeal, Mr. Herrera-Ordones challenges the district court's venue determination and its denial of a two-level reduction for acceptance of responsibility under sec. 3E1.1 of the United States Sentencing Guidelines. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I BACKGROUND

A. Facts

The parties have stipulated to these facts. Darius Herrera-Ordones is an alien of Mexican heritage who first entered the United States illegally sometime before September 1988. Under various aliases, he was convicted in the state of Washington three times between June 1989 and May 1992 for drug offenses. The Immigration and Naturalization Service ("INS") authorities instituted deportation proceedings against him while he was serving his sentence and deported him as an aggravated felon on June 18, 1994.

Sometime within the following two years, Mr. Herrera-Ordones reentered the United States illegally. On September 21, 1996, he was arrested in Elkhart, Indiana, and jailed on a felony battery charge for beating up his girlfriend. The alias he gave police was "Jose Rendon." He had falsified his birth date and social security number, as well. On January 27, 1997, INS Special Agent Ray Pachciarz interviewed the defendant at the Elkhart County Jail. Mr. Herrera-Ordones gave the agent another false name ("Jose Aldelberto Rendon-Contreras"), false social security number, and false place of entry into the United States. He also falsely stated that he had no prior immigration record. The agent attempted to locate any other INS files under that name. In mid- February, he obtained a file--but for a different person, not for the man in the Elkhart County Jail.

On February 5, 1997, Agent Pachciarz filed an Immigration Detainer for Jose Rendon, a/k/a Jose Rendon-Contreras, a/k/a Manuel Rendon. The detainer advised the Elkhart County Sheriff that the INS had initiated an investigation to determine whether the person they believed to be Jose Rendon was subject to deportation from the United States. The detainer requested that the sheriff notify the INS prior to Rendon's (Mr. Herrera-Ordones's) release. The INS agent continued to check records to determine the identity of Jose Adelberto Rendon-Contreras and his prior immigration or criminal record, if any.

Sometime during February or March 1997, the case was transferred to another INS Special Agent, Brian Johnson. In mid-March 1997, the INS received from the Elkhart County Sheriff a two- page FBI document. It contained a fingerprint analysis which stated that the fingerprints of Jose Rendon were identical to those of Juan Carlos Guzman Gorrea, a person with a prior criminal record with the FBI. The FBI report also reported Gorrea's criminal history from the state of Washington and listed seven aliases he used-- three of which were "Darius Herrera," "Darius Herreraordones" and "Darius H. Ordones." The report did not indicate there was a previous deportation. Agent Johnson started checking INS files for information on any of those aliases. At the same time, on March 14, 1997, Mr. Herrera- Ordones was convicted, under the name Jose Rendon, in Elkhart County, Indiana, of felony battery and was sentenced to eight years of imprisonment with four years suspended. Following its usual procedure, within the next two weeks the Indiana Department of Corrections ("DOC") transferred Mr. Herrera-Ordones from the Elkhart County Jail (in the Northern District of Indiana) to the Indiana Reception and Diagnostic Center ("RDC") in Plainfield, Indiana (in the Southern District of Indiana) for placement diagnosis.

By the end of March, Agent Johnson had obtained the conviction records for Juan Carlos Gorrea, the name under which Mr. Herrera-Ordones was convicted for delivery of heroin in 1992 and deported in 1994. On April 9, 1997, Agent Johnson also had received a file on Darius Herrera- Ordones from the Seattle, Washington INS office. From that file, Agent Johnson learned that Mr. Herrera-Ordones had been deported as an aggravated felon in June 1994.

Just a week before receiving that file, on April 1, 1997, Agent Johnson had interviewed Mr. Herrera-Ordones at the RDC. Mr. Herrera-Ordones again gave his false name, Jose Rendon Contreras, but this time admitted that he had previously been deported and had reentered the United States illegally near Brownsville, Texas, in approximately April 1996. Agent Johnson advised him that he was subject to deportation and possibly to prosecution for his illegal reentry after deportation. Following that interview, Agent Johnson completed his investigation by obtaining all previous criminal and deportation records regarding Mr. Herrera-Ordones and obtaining fingerprint analysis to determine if the person in custody known as Jose Rendon was the same person who had previously been deported as Darius Herrera-Ordones in 1994.

On April 19, 1997, Agent Johnson received a fingerprint examiner's opinion that the fingerprints Agent Johnson had submitted for Jose Aldelberto Rendon, Jose Rendon-Contreras and Darius Herrera-Ordones all belonged to the same person. On August 13, 1997, the INS filed a complaint charging Mr. Herrera-Ordones with one count of violating 8 U.S.C. sec. 1326(a) and (b)(2)² by being an alien who reentered without permission and was found in the United States after deportation for an aggravated felony conviction.

B. Determinations of the District Court

Mr. Herrera-Ordones stipulated to the essential elements of 8 U.S.C. sec. 1326:

1) On the date charged in the indictment, he was an alien;

2) he had been arrested and deported from the United States on or about June 18, 1994, through the port of Otay Mesa, California;

3)his deportation was subsequent to a conviction for the commission of an aggravated felony, delivery of heroin, in the State of Washington in 1992;

4) after his deportation, he was found in the United States;

and

5) the Attorney General of the United States had not expressly consented to his reapplying for admission to the United States.

The court, by bench trial, accepted the stipulations of fact, stipulated exhibits and stipulated elements of the crime that the government was required to prove beyond a reasonable doubt. The only issue Mr. Herrera- Ordones contested at trial was venue. Mr. Herrera-Ordones asserted that he was "found in" the Northern District of Indiana because his presence there was known to law enforcement and to the INS. According to the defendant, prosecution should have been instituted there instead of in the Southern District of Indiana. However, the court found that the evidence showed that the INS did not confirm Mr. Herrera-Ordones' true identity or status until after the state officials had transported him to the Southern District. The court held that venue in the Southern District therefore was proper and ruled that Mr. Herrera-Ordones was guilty of the charge of violating 8 U.S.C. sec. 1326.

At sentencing, the district court denied Mr. Herrera-Ordones a sec. 3E1.1 downward adjustment for acceptance of responsibility under the Sentencing Guidelines. It found that he had not demonstrated a moral acceptance of responsibility; in fact, the court noted, he had merely stated that he was sorry he got caught. The court stated that Mr. Herrera-Ordones had a life-long history of crime in the United States, that he had used aliases repeatedly and had lied about his true identity, and that he had not cooperated with the probation office investigation. The court imposed sentence, without the downward departure for acceptance of responsibility, on the grounds that he had entered this country illegally twice, had continually committed crimes while in the United States and had no apparent legal means of support while in this country. This appeal followed.

II DISCUSSION

A. Venue

Mr. Herrera-Ordones challenged venue in his probable cause hearing, in a motion to dismiss the indictment, and at trial. At each step the challenge was denied, and venue in the Southern District of Indiana was held to be proper. The venue statute governing prosecutions brought under sec. 1326 is found at 8 U.S.C. sec. 1329. It states that venue is proper "at any place in the United States at which the violation may occur or at which the person charged . . . may be apprehended."³ The government must establish, by a preponderance of the evidence, that venue was proper by showing that the offense occurred in the district in which it was brought. We, in turn, review a venue decision by considering "'whether, viewing the evidence in the light most favorable to the government, . . . the government proved by a preponderance of the evidence that the crimes...