UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40842
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RUBEN RAMIREZ-GAMEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
March 25, 1999
Before DAVIS, DUHÉ, and PARKER, Circuit Judges.
PER CURIAM:
Appellant Ruben Ramirez-Gamez (“Ramirez”) appeals his
conviction after trial by jury for being a previously deported
alien present in the United States in violation of 8 U.S.C. § 1326.
Specifically, he challenges his indictment for failure to allege an
essential element of the offense. We affirm his conviction.
I. Background and Procedural History
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On March 24, 1997, a McAllen, Texas, police officer stopped
Ramirez for a traffic violation. As Ramirez exited his vehicle,
the officer noticed that a handgun was tucked into the rear
waistband of Ramirez’s pants. When Ramirez did not comply with the
officer’s instructions, he was wrestled to the ground, the weapon
was seized from him, and he was arrested and transported to the
McAllen police station. On April 15, 1997, an Immigration and
Naturalization Service (“INS”) agent visited Ramirez in prison and
determined that he was an undocumented alien who was in the United
States illegally and who had been arrested and deported from the
United States on at least three prior occasions. It was also
ascertained that Ramirez had not obtained permission to reenter the
country.
On June 3, 1997, Ramirez was charged by a three-count
indictment with: 1) illegal reentry into the country without
consent of the Attorney General after having been deported, in
violation of 8 U.S.C. § 1326, 2) being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1), and 3) being an
illegal alien in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(5).1 Specifically, count one charged that:
On or about March 24, 1997, in the Southern District of
Texas and elsewhere within the jurisdiction of the Court,
defendant RUBIN RAMIREZ-GAMEZ an alien who had previously
been deported, knowingly and unlawfully was present in
1
Ramirez does not challenge his convictions of being a felon in
possession of a firearm or being an illegal alien in possession of
a firearm.
2
the United States having been found in McAllen, Texas,
said defendant not having obtained the consent of the
Attorney General of the United States for re-application
by the defendant for admission into the United States.
In violation of Title 8, United States Code, Sections
1326(a) and 1326(b).
The case was tried to a jury, which ultimately found him guilty on
all three counts. On June 11, 1998, the district court sentenced
Ramirez to serve 108 months in the custody of the Bureau of
Prisons, and it imposed a three-year term of supervised release and
a $100 special assessment.
II. Discussion
Ramirez’s sole argument on appeal is that count one of the
indictment was fundamentally defective. He contends that, because
the indictment did not allege that he had been arrested prior to
his deportation, the indictment did not allege all of the elements
of an illegal-reentry offense. The question we now face is whether
the indictment’s deficiency, if any, requires us to vacate
Ramirez’s conviction.
Congress amended 8 U.S.C. § 1326 effective April 1, 1997. The
applicable language of the predecessor statute included the phrase
“arrested and deported”, or “has been excluded and deported”. The
1997 amended language deleted the reference to “arrested” and
“excluded” and now only requires that the alien was “deported”.
The parties disagree about which version of the statute should
apply to Ramirez. Ramirez contends that because he was arrested on
March 24, 1997, and because the indictment states that the offense
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was committed “on or about March 24, 1997,” the indictment must
comply with the pre-April 1, 1997 version of the statute. The
Government contends that Ramirez’s “offense continued until he was
found by the INS authorities on April 15, 1997,” and therefore,
that April 15 should be the date used to determining which version
of the statute controls. Alternatively, the Government argues that
the indictment’s allegation that the offense under § 1326 was
committed “unlawfully” and the indictment’s citation to the statute
rendered the allegations constitutionally sufficient, even under
the pre-April 1, 1997 version of the statute.
We first note that this court recently considered the same
challenge to an indictment as raised by Ramirez in United States v.
Cabrera-Teran, No. 97-41532, 1999 WL 74199 (5th Cir. Feb. 15,
1999). In Cabrera, the indictment charged that:
Joel Cabrera-Teran, an alien who had previously been
deported, thereafter entered the United States of America
having not obtained the consent of the Attorney General
of the United States for re-application by the defendant
for admission into the United States.
Id. at *1. There, too, the indictment failed to allege that the
defendant had been arrested prior to his deportation. The Cabrera
panel did not, and nor do we, focus on other traditional purposes
of an indictment such as providing the defendant with notice of the
offense charged or providing a double jeopardy defense against
future prosecutions. See generally United States v. Gayton, 74
F.3d 545, 552 (5th Cir.1996). In both Cabrera and in the present
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case, those purposes were satisfied. In vacating Cabrera’s
conviction, the panel held that to ensure that a grand jury has
considered and found evidence to support each element of a charged
offense, each of those elements must appear on the face of the
indictment. See id. at *5. Noting that nothing in the indictment
could be liberally construed to include the “arrest” element,
Cabrera’s conviction was vacated. See id.
Having noted Cabrera-Teran, we now turn to Ramirez’s
indictment. Ramirez challenged count one of the indictment for the
first time on appeal. We acknowledge that an indictment’s failure
to charge an offense is a jurisdictional question that may be
raised at any time. See FED. R. CRIM. P. 12(b)(2); United States v.
Fitzgerald, 89 F.3d 218, 221 & n.1 (5th Cir.1996). Whether an
indictment sufficiently alleges the elements of an offense is a
question of law which this court reviews de novo. See United
States v. Shelton, 937 F.2d 140, 142 (5th Cir.1991). However, when
a defendant had notice of the defective-indictment issue but does
not raise his challenge until appeal, this court reviews the
indictment with “maximum liberality.” See Fitzgerald, 89 F.3d at
221 & n.1; Cabrera-Teran, 1999 WL 71499 at *1. Under such review,
an indictment is considered sufficient “unless it is so defective
that by any reasonable construction, it fails to charge the offense
for which the defendant is convicted.” Fitzgerald, 89 F.3d at 221.
“The test involves minimal constitutional standards, not whether a
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better indictment could have been written.” See McKay v. Collins,
12 F.3d 66, 69 (5th Cir.1994).
In United States v. Campos-Asencio, 822 F.2d 506 (5th
Cir.1987), we noted that “[a] statutory citation cannot, by itself,
substitute for setting forth the elements of the crime, but a
citation may reinforce other references within the indictment.”
Id. at 507. In that case, the defendant was convicted of illegal
reentry on an indictment that failed to make explicit reference to
the absence of the Attorney General’s consent to reentry. We held
that the indictment, construed liberally (as we must do when it is
challenged for the first time on appeal) sufficiently included the
“no-consent” element by alleging that Campos was in the United
States “unlawfully” and referencing the statute. See id.; Cabrera-
Teran, 1999 WL 74199 at *3.
Likewise, in this case the indictment alleges that Ramirez was
present “unlawfully” in the United States and made reference to the
statute violated. Therefore, without deciding which version of 8
U.S.C. § 1326 Ramirez was indicted under, we hold that the
indictment was sufficient. Under the pre-April 1, 1997 version,
the indictment passes muster under Fitzgerald and Campos-Asencio.
See 89 F.3d at 221; 822 F.2d at 507. Liberally reviewing Ramirez’s
indictment, we find that the term “unlawfully” coupled with the
reference to the statute is sufficient evidence that the grand jury
did consider and find evidence to support the “arrest” element of
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the offense charged. Alternatively, under the April 1, 1997
version, “arrest” is no longer a required element of the crime.
III. Conclusion
The conviction is AFFIRMED.
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