Appeal from the United States District Court for the Northern District of Iowa.
The opinion of the court was delivered by: Benton, Circuit Judge.
Submitted: April 17, 2012
Before BYE, BEAM, and BENTON, Circuit Judges.
Jacinto Rivera-Mendoza, a Mexican citizen, pled guilty to conspiracy to distribute methamphetamine and re-entry as a previously removed alien. He challenges venue on the re-entry charge and appeals his sentence. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
Rivera-Mendoza was deported from the United States in 2005. He returned illegally in February 2010 and began managing a meth operation from Iowa. In July, agents from the Drug Enforcement Administration placed a wiretap that recorded Rivera-Mendoza using various aliases. A grand jury indicted "Salvador Figueora- Arias," one such alias, on meth-related counts. On September 20, agents arrested Rivera-Mendoza in Des Moines, in the Southern District of Iowa. He had three forms of false identification but admitted his illegal presence and gave his true name and date of birth. For arraignment that afternoon, authorities hauled him to Cedar Rapids, in the Northern District of Iowa. Conducting finger-print and photo analysis there, authorities confirmed his identity, learned of his deportation, and added the re-entry charge. Rivera-Mendoza moved to dismiss that charge for improper venue. The district court*fn1 denied the motion. He then entered a plea agreement. He pled unconditionally to the conspiracy, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. He conditioned his plea to re-entry, in violation of 8 U.S.C. § 1326(a), on his right to appeal venue.
The district court calculated the base offense level at 38. It enhanced the sentence two levels for drug importation, U.S.S.G. § 2D1.1(b)(5), and three levels for his managerial role, § 3B1.1(b). It did not grant a three-level, acceptance-of- responsibility reduction. § 3E1.1(a) and (b). With an offense level of 43 and a criminal history category of I, the advisory range was life. The district court imposed a 420-month sentence.
A denial of a motion to dismiss for improper venue is reviewed de novo. United States v. Howell, 552 F.3d 709, 712 (8th Cir.), cert. denied, 129 S. Ct. 2812 (2009). The Sixth Amendment guarantees a trial in the district where the alleged crime occurred. The government must prove venue by a preponderance of the evidence. United States v. Jaber, 509 F.3d 463, 465 (8th Cir. 2007).
It is illegal for a previously-deported alien to be "found in" the United States. § 1326(a). Violations may be prosecuted at the place of apprehension. 8 U.S.C. § 1329. The offense is continuous and is not complete until the alien "is discovered by immigration authorities." United States v. Diaz-Diaz, 135 F.3d 572, 575 (8th Cir. 1998). "Discovery" requires both learning the alien's physical presence and ascertaining the alien's identity and status. Id. at 577.
Rivera-Mendoza was not found in the Southern District because authorities there had not ascertained his deportation status. Authorities in the Northern District determined he was prosecutable under § 1326(a) only after uncovering the 2005 deportation. That required identity confirmation and completion of finger-print and photo analysis. Rivera-Mendoza unpersuasively relies on a Ninth Circuit case where the defendant was found in Oregon, transported to Washington, and "found" again. United States v. Hernandez, 189 F.3d 785, 787 (9th Cir. 1999). In contrast, Rivera- Mendoza was found once. Venue was proper in the Northern District of Iowa.
Rivera-Mendoza argues that the district court erred procedurally by applying the importation enhancement and refusing to grant an acceptance-of-responsibility reduction. He also attacks the 420-month sentence as substantively unreasonable.
This court reviews findings of fact for clear error and the application of Sentencing Guidelines de novo. United States v. Miell, 661 F.3d 995, 997 (8th Cir. 2011), cert. denied, 132 S. Ct. 1777 (2012). Reversal under clearly erroneous review requires a "definite and firm conviction that a mistake has been committed." United States v. Martinez, 446 F.3d 878, 881 (8th Cir. 2006), quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985).
The district court found "by a preponderance of the evidence that . . . a certain amount of [the drugs] were imported from Mexico." The Guidelines mandate a two- level enhancement "[i]f the offense involved the importation of . . . methamphetamine or the manufacture of . . . methamphetamine from listed chemicals that the defendant knew were imported unlawfully . . . ." § 2D1.1(b)(5). The ...