United States of America, Plaintiff-appellee, v. Jesus Lopez-lopez, Defendant-appellant, 145 F.3d 1342 (9th Cir. 1998)

MEMORANDUM^* 

Jesus Lopez-Lopez appeals his conviction by conditional guilty plea to being an illegal alien found in the United States after having sustained two felony convictions and having been deported, in violation of 8 U.S.C. §§ 1326(a), (b) (1) & (b) (2). We have jurisdiction pursuant to 18 U.S.C. § 1291. We review for abuse of discretion the trial court's ruling on a motion for change of venue, see United States v. Collins, 109 F.3d 1413, 1416 (9th Cir.), cert. denied, 88 S. Ct. 183 (1997), and we affirm.

Lopez-Lopez contends that the district court erred by denying his motion for change of venue from the Central District of California to the Southern District of California because his crime of illegal reentry was complete when the Immigration Naturalization Service "INS" discovered him in San Diego in September of 1995. This contention lacks merit.

Under 8 U.S.C. § 1326, it is a crime for a deported alien to be "at any time found" illegally in the United States. See 8 U.S.C. § 1326 (1996). Venue for a section 1326 prosecution is proper in any district in which "the violation may occur or at which the person charged ... may be apprehended." See 8, U.S.C. § 1329 (1996). A violation of section 1326 is a "continuing offense" so long as the alien remains in the country. See United States v. Guzman-Bruno, 27 F.3d 420, 423 (9th Cir. 1994). The INS is not required to prosecute "as soon as they know of the crime." See Guzman, 27 F.3d at 423.

Although Lopez-Lopez was initially interviewed by the INS after he was apprehended in San Diego, at the time the INS arrested and charged him with the crime of illegal reentry he was being held at the Los Angeles County Jail. Therefore, Lopez-Lopez was "found" and apprehended by the INS officials on September 13, 1996 while incarcerated in the Central District of California. See 8 U.S.C. § 1326; Guzman-Bruno, 27 F.3d at 423. Thus, venue was proper in the Central District of California and the district court acted within its authority in denying Lopez-Lopez's motion to transfer venue. See Collins, 109 F.3d at 1416.

AFFIRMED.