PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 19-4403 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANDRES ABELINO AYON-BRITO, a/k/a Hugo Ayon-Brito, a/k/a Joel Diaz Garcia, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Anthony John Trenga, District Judge. (1:18-cr-00259-AJT-1) Argued: October 30, 2020 Decided: December 2, 2020 Before NIEMEYER and KEENAN, Circuit Judges, and Richard E. MYERS II, United States District Judge for the Eastern District of North Carolina, sitting by designation. Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Keenan and Judge Myers joined. ARGUED: Geremy C. Kamens, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Heather Diefenbach Call, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Caroline S. Platt, Appellate Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, Daniel T. Young, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. NIEMEYER, Circuit Judge: Andres Abelino Ayon-Brito was prosecuted and convicted in the Eastern District of Virginia of reentering the United States without permission after having been removed, in violation of 8 U.S.C. § 1326(a). He appeals the district court’s denial of his pretrial motion to dismiss the indictment based on improper venue. Section 1326(a) provides that any previously deported alien who “enters, attempts to enter, or is at any time found in, the United States” without first receiving permission shall be punished. (Emphasis added). Ayon-Brito argues that even though the indictment alleged that he was first “encountered” after his reentry by law enforcement officers in the Eastern District of Virginia, it also alleged, as an element of the offense, that he was “found” in the Middle District of Pennsylvania where he was first accurately identified. Therefore, he asserts, the crime charged was committed in the Middle District of Pennsylvania, and venue was appropriate only there. See 8 U.S.C. § 1329 (establishing venue for a § 1326 violation in the district where the violation “occur[ed]”). In denying Ayon-Brito’s motion challenging venue, the district court concluded that his violation of § 1326(a) was a continuing offense that began when he reentered the United States and continued wherever he was present until he was found and arrested. The court thus held that because Ayon-Brito also committed the crime in Virginia, he could be prosecuted and tried in Virginia. For the reasons that follow, we affirm. 2 I Ayon-Brito is a native and citizen of Mexico who was removed from the United States to Mexico on August 13, 2010, and again on March 1, 2013. He never applied for or received permission from the Attorney General to reenter the United States. At some unknown time and place after his removal in 2013, Ayon-Brito reentered the United States and went to Virginia, where he had previously lived and worked. While in Virginia, he encountered law enforcement officers in September, October, and November 2014 while trafficking ...
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