IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-20968
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ARMANDO GUZMAN-OCAMPO,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
December 21, 2000
Before JOLLY, JONES, and SMITH, I.
Circuit Judges. Guzman, a Mexican citizen by birth who
was in the United States without inspection,
JERRY E. SMITH, Circuit Judge: was served with notice and a final
administrative removal order that found that
Challenging the sufficiency of his he was neither a citizen of the United States
indictment, Armando Guzman-Ocampo (“Guz- nor had been admitted for permanent
man”) appeals his conviction of illegally re- residence; that he had been convicted of an
siding in the United States after deportation, in aggravated felony (delivery of a controlled
violation of 8 U.S.C. § 1326. Finding no substance); and that the administrative record
reversible error, we affirm. demonstrated by clear and convincing evidence
that he was deportable as an alien convicted of
an aggravated felony. After being
advised of his rights, as contained in the IV.
notice, Guzman signed a waiver and requested Under the Sixth Amendment, an indictment
deportation to Mexico. must “(1) enumerate each prima facie element
of the charged offense; (2) fairly inform the
A warrant of removal/deportation was defendant of the charges filed against him; and
issued, and Guzman was deported; on the (3) provide the defendant with a double
same day, he was served with a warning ad- jeopardy defense against future prosecutions.”
vising that he was prohibited from entering or United States v. Gaytan, 74 F.3d 545, 551
attempting to enter the United States at any (5th Cir. 1996). These requirements provide
time, because he had been ordered deported as the defendant with notice of the crime, id. at
an alien convicted of an aggravated felony. 552, and ensure that the grand jury has found
Several months later, he illegally reentered, probable cause that the defendant committed
not having applied to the Attorney General for each element of the offense, United States v.
permission to do so after deportation. Cabera-Teran, 168 F.3d 141, 143 (5th Cir.
1999). In sum, “[t]o be sufficient, an
II. indictment must allege each material element
Guzman was charged with being illegally in of the offense; if it does not, it fails to charge
the United States after deportation, in vio- that offense.” Id.
lation of § 1326, which creates criminal
penalties for aliens who have been deported or Because the sufficiency of an indictment is
removed and are later found in the United jurisdictional, a defendant may, at any time,
States without the Attorney General’s consent. contest an indictment for failing to charge an
Guzman filed a motion to suppress evidence of offense. See id. The timing of the challenge
his deportation and to dismiss the indictment does alter the standard of review, however.
on the ground that his deportation was illegal We generally review the sufficiency of an in-
and could not form the basis for a prosecution dictment de novo and will not reverse for
under § 1326. After the court denied the “minor deficiencies that cause no prejudice.”
motion, Guzman waived his right to a jury and Gaytan, 74 F.3d at 551. Guzman, however,
proceeded to a bench trial on stipulated facts, did not challenge the sufficiency of the
whereupon the court found him guilty. indictment in the district court, so sufficiency
is subject to the standard of “maximum
III. liberality.”1
Guzman challenges the indictment on the
ground that it failed to allege actus reus, spe- A.
cific intent, or general intent. He also
contends that the court erred in not
suppressing evidence of his deportation on the 1
United States v. Lankford, 196 F.3d 563, 569
ground that its procedures violated due (5th Cir. 1999) (quoting United States v.
process. Our precedent specifically forecloses Fitzgerald, 89 F.3d 218, 221 (5th Cir. 1996), and
all but one of these challenges. We decide the stating that an indictment is sufficient unless “it is
remaining question in agreement with five so defective that by any reasonable construction, it
other circuits who have considered it and in fails to charge the offense for which the defendant
disagreement with one circuit. is convicted.”), cert. denied, 120 S. Ct. 1984
(2000).
2
Guzman argues that if § 1326 proscribes deficient because it did not allege a general
mere presence in the United States, it is an un- intent to reenter. Although the statute’s plain
constitutional status offense. If, on the other language does not include a mens rea
hand, the statute requires the defendant to re- requirement for this element,4 other courts
enter the country illegally, the indictment is have found a general intent requirement.5
deficient because it alleges only a passive con-
dition. In United States v. Tovias-Marroquin, A general intent mens rea under § 1326,
218 F.3d 455 (5th Cir. 2000), however, we then, merely requires that a defendant reenter
rejected the argument that an indictment under the country voluntarily. This general intent re-
§ 1326 was deficient because it alleged only a quirement serves the limited purpose of pre-
passive status offense. venting one from being liable under § 1326 if
he crossed the border involuntarily.6
B.
We also have rejected the claim that an in-
dictment is fundamentally defective because it 4
Pursuant to the text of § 1326, the government
fails to allege a specific intent to violate is required to allege only (1) that the defendant was
§ 1326.2 This challenge has been rejected by an alien, (2) that he was “deported” as that term is
all circuits that have considered this question, contemplated by the statute, (3) that he
save one.3 subsequently was found within the United States;
and (4) that he did not have the consent of the
C. Attorney General to reapply for admission.
Guzman contends that the indictment was 5
See United States v. Salazar-Robles, 207 F.3d
648, 650 (9th Cir.) (opining that a violation of
§ 1326 requires the general intent to reenter), cert.
2
United States v. Ortegon-Uvalde, 179 F.3d denied, 121 S. Ct. 145 (2000); United States v.
956, 959 (5th Cir. 1999) (finding no specific intent Martus, 138 F.3d 95, 97 (2d Cir. 1998) (holding
requirement in § 1326), cert. denied, 120 S. Ct. that government must prove voluntary act of re-
433 (2000); United States v. Trevino-Martinez, 86 entry); United States v. Peralt-Reyes, 131 F.3d
F.3d 65, 68 (5th Cir. 1996) (finding no specific 956, 957 (11th Cir. 1997) (finding no error in in-
intent requirement, but not reaching question structing jury with a general intent requirement);
whether § 1326 is a general intent or strict liability United States v. Martinez-Moral, 118 F.3d 710,
statute). 713 (10th Cir. 1997) (holding that the only intent
the government must prove is the intent to enter the
3
See United States v. Gonzalez-Chavez, 122 country); Espinoza-Leon, 873 F.2d at 745 (holding
F.3d 15, 17-18 (8th Cir. 1997); United States v. that § 1326 requires only proof of a voluntary act
Henry, 111 F.3d 111, 114 (11th Cir. 1997); by defendant). Contra Anton (holding that § 1326
United States v. Soto, 106 F.3d 1040, 1041 (1st requires showing of something more than general
Cir. 1997); United States v. Ayala, 35 F.3d 423, intent).
426 (9th Cir. 1994); United States v. Espinoza-
6
Leon, 873 F.2d 743, 746 (4th Cir. 1989); United Because the illegal conduct occurs when the
States v. Hernandez, 693 F.2d 996, 1000 (10th defendant reenters, not when he is found, he does
Cir. 1982); United States v. Newton, 677 F.2d 16, not even have to be in the country voluntarily when
17 (2d Cir. 1982); United States v. Hussein, 675 he is located. Such circumstances can arise when
F.2d 114, 116 (6th Cir. 1982). Contra United the defendant was “found” in prison after being
States v. Anton, 683 F.2d 1011 (7th Cir. 1982). (continued...)
3
Even while recognizing § 1326 as a general held that a “reasonable juro r may well infer
intent crime, circuits have differed as to its im- that the alien had the intention to be here.” Id.
plications for the indictment. The Ninth Circuit The court characterized this type of proof not
allows the jury to infer intent and the as a presumption of law, but as circumstantial
defendant to rebut the inference by showing proof that is convincing unless the defendant
involuntariness.7 explains it away.
That court revisited the issue in United The nature of this crime is such that
States v. Quintana-Torres, 224 F.3d 1157 (9th circumstantial evidence will most often be the
Cir. 2000), in which the narrow issue was only evidence available to demonstrate that the
whether the government had introduced defendant was voluntarily in the country.
evidence that the defendant had entered the Distance from the border, in most cases, will
United States voluntarilySSnot whether the be sufficient evidence to allow the jury to draw
indictment had alleged a mens rea. The case the inference that presence was voluntary. A
remains useful in understanding mechanics of defendant would then be able to exonerate
the general intent requirement in Ninth Circuit herself by offering evidence that she was in the
jurisprudence. The court noted that the country “against her will.”9 Quintana offered
government must prove voluntary entry no such evidence, so his conviction was
beyond a reasonable doubt; otherwise, a de- affirmed.
fendant could be convicted, for example, for
sleeping on a train that unexpectedly enters the The Tenth Circuit has noted that the
United States. Id. at 1159. government must prove that the entry was
voluntary, but the court did not include that
Recognizing the unlikelihood of involuntary factor as one of the elements of a violation of
entry when an alien is found in the country at § 1326.10 Other circuits include voluntary re
a location other than the border,8 the court
8
(...continued)
6
(...continued) after having been deported and ordered not to
incarcerated for a different crime. United States v. reenter.
Asibor, 109 F.3d 1023, 1031-32 (5th Cir. 1997)
9
(stating that being in the country illegally is a This should not be construed as allowing the
continuous offense); Salazar-Robles, 207 F.3d at government to shift the burden of proof regarding
649 (opining that the argument that defendant did voluntary presence in the country to the defendant.
not voluntarily put himself in prison does not mean To do so would violate In re Winship, 397 U.S.
that he did not violate § 1326 because his presence 358 (1970) (“the Due Process Clause protects the
was not voluntary). accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary
7
Pena-Cabanillas v. United States, 394 F.2d to constitute the crime with which he is charged.”).
785, 788 n.2 (9th Cir. 1968) (noting that defendant
10
may defend against general intent on ground that he See United States v. Martinez-Morel, 118
did not commit a voluntary act). F.3d 710, 716 (10th Cir. 1997) (noting that the
only mens rea required under § 1326 is intent to
8
Quintana was found in San Diego, California, enter the country); United States v. Hernandez,
(continued...) (continued...)
4
entry as one of the elements but note that vol- The indictment alleged every statutorily re-
untariness generally is not contested and that quired element of § 1326.13 Guzman had no-
involuntary reentry is unlikely.11 tice of the charge filed against him. The in-
dictment also fairly imported that his reentry
In Tovias-Marroquin, 218 F.3d at 457-58, was a voluntary act in view of the allegations
we suggested that there is a general intent re- that he had been excluded, deported, and re-
quirement in § 1326. Although the jury in- moved and that he was present without having
struction did not include the requirement that obtained the consent of the Attorney General.
the defendant “‘knowingly’ re-entered the
country,” we reasoned that the jury was In other words, the facts created a strong
informed of the mens rea requirement favored inference of voluntariness, just as in Quintana-
by the defendant, because he and the govern- Torres. Guzman was free to challenge the
ment had told the jury that it must find that he voluntariness of his entry, which he did not do.
was “knowingly in the United States.” Id. Therefore, Guzman’s indictment is statutorily
sufficient.
Adopting the suggestion in Tovias-Marro-
quin, we now join the majority of jurisdictions D.
that have addressed this issue in deciding that We need not pause long on Guzman’s final
§ 1326 is a general intent offense. According- claimSSthat the expedited administrative de-
ly, the government must show that the defen- portation procedure under 8 U.S.C. § 1228
dant had the general intent to reenter.12 violates due process, and therefore all evidence
of prior deportation should be suppressedSSfor
10
Guzman concedes it is raised merely to
(...continued) preserve Supreme Court review. Guzman
693 F.2d 996, 1000 (10th Cir. 1992) (identifying
the elements of a § 1326 violation as “(1) an alien
(2) who has been arrested, and (3) deported, and
12
(4) thereafter is found in the United States, (...continued)
(5) without the Attorney General’s consent for Landaverde, 65 F.Supp. 2d 567 (S.D. Tex. 1999)
readmission.”). (reasoning that general intent may be inferred from
the fact that a defendant was previously “de-
11
Espinoza-Leon, 873 F.2d at 746 (noting that ported,” as that term is contemplated in the statute,
it was undisputed that defendant had entered vol- and subsequently was “found in” the United
untarily); Diaz v. Duckworth, 143 F.3d 345, 347 States.)
(7th Cir. 1998) (remarking that the possibility of
13
violating § 1326 involuntarily and still being pun- The indictment charged:
ished is “minute” and that although the defendant
could be kidnaped and brought to the United On or about March 10, 1999, in the
States, the possibility was “far too remote”). Southern District of Texas, Armando
Guzman-Ocampo, . . . an alien previously
12
Although we decide only that this indictment excluded, deported, and removed from the
was sufficient under the “maximum liberality” United States, was found present in the
standard, we note that a district court has found a United States, at Houston, Texas, without
similar indictment sufficient when challenged in the having obtained consent from the Attorney
district court. See United States v. Hernandez- General of the United States to reapply for
(continued...) admission into the United States.
5
argues that having an administrative officer, as
opposed to an immigration judge, prepare and
execute the charge denies the alien (1) notice,
(2) the opportunity to be heard, and (3) review
by an impartial judge. This argument is
foreclosed by United States v. Benitez-
Villafuerte, 186 F.3d 651, 657 (5th Cir. 1999),
cert. denied, 120 S. Ct. 838 (2000), in which
we determined that “the administrative
deportation procedures of § 1228 afforded
Benitez the unimpeded opportunity to claim all
the procedural due process to which he was
constitutionally entitled.”
In Benitez-Villafuerte, id. at 659, we also
found that to attack collaterally a deportation
proceeding under § 1326, the alien must show
that the procedural defects caused actual pre-
judice, which requires a showing of a reason-
able likelihood that, without the procedural er-
rors, he would not have been deported. Guz-
man’s argument that his prior deportation
should have been suppressed fails under these
standards. He was in the country without in-
spection and without being admitted for
permanent residency, and he was convicted of
an aggravated felony. Those undisputed facts
are sufficient for deportation under § 1227(a)-
(2)(A)(iii).
Although Guzman argues that his claim of
bias is a “structural argument” and therefore
not subject to the actual prejudice standard,
the court in Benitez-Villafuerte, 186 F.3d at
659-60, considered and rejected an identical
claim of bias. Thus, this issue, also, is
foreclosed by our precedent.
AFFIRMED.
6