Portillo-Vasquez

MEMORANDUM **

Alexander Portillo-Vasquez appeals his guilty plea conviction for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we vacate and remand.

Portillo-Vasquez contends that the district court violated Fed.R.Crim.P. 11(c)(1) by not advising him that an element of the crime is that he was “found in” the United States. We review de novo, United States v. Seesing, 234 F.3d 456, 459 (9th Cir. 2000), and conclude that the district court failed to explain the nature of the charge and that the error was not harmless.

Section 1326 criminalizes three distinct acts committed by aliens who have been deported: entering, attempting to enter, and being found in the United States. United States v. Pacheco-Medina, 212 F.3d 1162, 1165 (9th Cir.2000). Portillo-

Vasquez was charged with being found in the United States. Being “found” is an element of the crime. United States v. Salazar-Robles, 207 F.3d 648, 650 (9th Cir.), cert, denied, 531 U.S. 859 , 121 S.Ct. 145 , 148 L.Ed.2d 96 (2000). However, he was not told that the government had to prove that he was found in the…