IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20077
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERARDO ALVARADO-ESPARZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-565-1
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February 14, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Gerardo Alvarado-Esparza appeals from his guilty-plea
conviction for illegal reentry by a previously deported alien in
violation of 8 U.S.C. § 1326(b). First, Alvarado-Esparza argues
that the indictment was insufficient because it failed to allege
any specific-intent element. He concedes, however, that this
argument is foreclosed by United States v. Ortegon-Uvalde, 179
F.3d 956, 959 (5th Cir.), cert. denied, 528 U.S. 979 (1999) and
United States v. Trevino-Martinez, 86 F.3d 65, 68 (5th Cir.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 00-20077
-2-
1996). He raises the issue only to preserve it for possible
Supreme Court review.
Next, Alvarado-Esparza argues that his indictment was
defective for charging him with a prohibited status offense.
This argument is foreclosed by our recent decision in United
States v. Tovias-Marroquin, 218 F.3d 455, 456-57 (5th Cir.),
cert. denied, 121 S. Ct. 670 (2000).
Finally, Alvarado-Esparza argues that the indictment was
insufficient because it failed to allege any mens rea. This
court’s recent decision in United States v. Guzman-Ocampo, 236
F.3d 233 (5th Cir. 2000), is dispositive. The indictment alleged
every statutorily required element of 8 U.S.C. § 1326 and fairly
imported that Alvarado-Esparza’s reentry was a voluntary act in
view of the allegations that he had been excluded, deported, and
removed, and that he was present without having obtained the
consent of the Attorney General. Alvarado-Esparza failed to
challenge the indictment. Consequently, under Guzman-Ocampo, the
indictment was statutorily sufficient.
Accordingly, the judgment of conviction is AFFIRMED.