IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-21106
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO MAGANA-FRIAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-514-1
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February 14, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Mario Magana-Frias appeals from his guilty plea conviction
and sentence for illegal reentry by a previously deported alien
in violation of 8 U.S.C. § 1326(b). First, Magana-Frias argues
that the indictment failed to allege that he had committed any
act in violation of 8 U.S.C. § 1326 because the indictment had
passively alleged only that he had been found in the United
States without permission. This argument is foreclosed by the
court’s recent decision in United States v. Tovias-Marroquin, 218
*
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that this opinion should not be published and is not precedent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. 99-21106
-2-
F.3d 455, 456-57 (5th Cir. 2000), cert. denied, 121 S. Ct. 670
(2000).
Next, Magana-Frias 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 he raises the issue only
to preserve it for possible Supreme Court review.
Finally, Magana-Frias 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 Magana-Frias’s reentry was a voluntary act in view
of the allegations that he had been deported and removed, and
that he was present without having obtained the consent of the
Attorney General. Magana-Frias failed to challenge the element
of voluntariness. Consequently, under Guzman-Ocampo, the
indictment was statutorily sufficient.
Accordingly, the judgment of conviction is AFFIRMED.