UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20500
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JESUS LOPEZ-CERVANTES,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(H-00-CR-72-1)
February 22, 2001
Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.
PER CURIAM:*
Jesus Lopez-Cervantes (“Lopez”) appeals his conviction and
sentence after pleading guilty to illegal reentry by a previously
deported alien. We affirm.
*
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opinion should not be published and is not precedent except under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.
1
On October 23, 1999, when agents of the Immigration and
Naturalization Service interviewed Lopez in the Harris County Jail,
they discovered that he was a citizen of Mexico. Official records
revealed that he previously had been convicted of, and served a
prison term for, burglary of a building and subsequently had been
deported to Mexico on June 3, 1999.
On February 14, 2000, Lopez was charged in the district court
in a one-count indictment with being an alien who previously had
been deported and who was unlawfully found in the United States, in
violation of 8 U.S.C. § 1326(a), (b)(2). The indictment charged
the following:
On or about Ocober 23, 1999, in the Houston Division of
the Southern District of Texas,
JESUS LOPEZ-CERVANTES
defendant herein, an alien previously deported and
removed from the United States, was found present in the
United States at Houston, Texas, without having obtained
the consent of the Attorney General of the United States
to apply for readmission into the United States.
On March 7, 2000, Lopez pleaded guilty to the illegal reentry
charge. The district court sentenced Lopez to eighty-seven months’
imprisonment. Lopez timely appealed.
Lopez argues that his sentence should be vacated in light of
the Supreme Court’s recent opinion in Apprendi v. New Jersey, 120
S. Ct. 2348, 2362 & n.15 (2000). He argues that a prior felony
conviction is an element of the offense of reentry following
deportation after a felony conviction, and that his indictment did
2
not allege a prior felony conviction.
The substantive offense of illegal reentry following
deportation is defined is 8 U.S.C. § 1326(a) and is punishable by
a term of up to two years’ imprisonment. Section 1326(b)
establishes enhanced penalties for persons who reenter the United
States if they were deported following certain convictions.
Reentry by an aggravated felon is punishable by up to twenty years’
imprisonment. See § 1326(b)(2). In Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998), the Supreme Court held that §
1326(b)(2)’s enhancement provision is a sentencing factor and not
a separate criminal offense which must be alleged in the
indictment. 523 U.S. at 235. The Supreme Court expressly declined
to overrule Almendarez-Torres. United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000) (citing Apprendi, 120 S. Ct. at 2362).
Accordingly, Lopez’s argument has no merit.
Lopez next argues that the indictment fails to charge an
offense because it does not allege general intent mens rea on his
part. Because an indictment is jurisdictional, a defect is not
waived by a guilty plea and may be challenged for the first time on
appeal. United States v. Cabrera-Teran, 168 F.3d 141, 143 (5th
Cir. 1999).
Lopez is correct that § 1326 is a general intent offense.
United States v. Guzman-Ocampo, –- F.3d –-, 2000 WL 1868226 at *3
(5th Cir. 2000). However, his indictment “fairly imported” that
3
his reentry was a voluntary act2 and is, therefore sufficient. Id.
Based on the foregoing, we affirm Lopez’s conviction and
sentence.
AFFIRMED.
2
The indictment which we approved in Guzman-Ocampo read:
“On or about March 10, 1999, in the Southern District of Texas,
Armando Guzman-Ocampo, . . . an alien previously excluded,
deported, and removed from the United States, was found present in
the United States, at Houston, Texas, without having obtained
consent from the Attorney General of the United States to reapply
for admission into the United States.” Id., at *4 n.13.
4