IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-20044
Summary Calendar
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ADRIAN DANIEL CARDENAS-VALDEZ, also known as Pedro
Gonzalez-Valdez, also known as Daniel Cardenas
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-362-1
_________________________________________________________________
May 9, 2001
Before KING, Chief Judge, and WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Adrian Daniel Cardenas-Valdez appeals
his conviction under 8 U.S.C. § 1326. For the following reasons,
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this opinion should not be published and is not precedent except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.
I. FACTUAL AND PROCEDURAL BACKGROUND
On March 12, 1999, Defendant-Appellant Adrian Daniel
Cardenas-Valdez, a citizen of Mexico, was deported to Mexico from
Hidalgo, Texas. In early April 1999, Cardenas-Valdez was
arrested for criminal mischief in Houston, Texas. A few days
later, an Immigration and Naturalization (“INS”) agent
interviewed Cardenas-Valdez at the Harris County Sheriff’s
Office. The INS agent determined that Cardenas-Valdez was an
undocumented alien with a criminal record. That same day,
Cardenas-Valdez gave another INS agent a signed statement
admitting that he was citizen of Mexico, that he illegally
entered the United States in April 1999, that he was previously
deported to Mexico from Hidalgo, and that he had not applied for
permission from the U.S. Attorney General to reenter the country.
On June 25, 1999, Cardenas-Valdez was charged in a one-count
indictment with being present in the United States as a
previously deported alien. See 8 U.S.C. § 1326(a), (b)(2).1 He
1
Section 1326 states in relevant part:
(a) In general
Subject to subsection (b) of this section, any alien
who—
(1) has been denied admission, excluded,
deported, or removed or has departed the United States
while an order of exclusion, deportation, or removal is
outstanding, and thereafter
(2) enters, attempts to enter, or is at any time
found in, the United States, unless (A) . . . the
Attorney General has expressly consented to such
alien’s reapplying for admission; or (B) . . . such
alien shall establish that he was not required to
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entered a plea of not guilty on July 8, 1999. Cardenas-Valdez
then filed a motion to dismiss the indictment2 for failing to
allege any intent or act on his part and a motion to suppress the
obtain such advance consent . . ., shall be fined under
Title 18, or imprisoned not more than 2 years, or both.
(b) Criminal penalties for reentry of certain removed
aliens
Notwithstanding subsection (a) of this section, in
the case of any alien described in such subsection—
. . . .
(2) whose removal was subsequent to a conviction
for commission of an aggravated felony, such alien
shall be fined . . ., imprisoned not more than 20
years, or both . . . .
8 U.S.C. § 1326 (1999).
2
The indictment against Cardenas-Valdez states:
THE GRAND JURY CHARGES:
COUNT ONE
On or about April 4, 1999, in the Houston Division
of the Southern District of Texas,
ADRIAN DANIEL CARDENAS-VALDEZ,
a/k/a Adrian Cardenas,
a/k/a Adrian Daniel Cardenas,
a/k/a Pedro Gonzales-Valdez,
a/k/a Daniel Cardenas,
a/k/a Pedro Valdez-Gonzales,
a/k/a Carlos Cecillio,
a/k/a Adrean Cardenas,
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 consent from the Attorney General of the
United States to reapply for admission into the United
States.
[Violation: Title 8, United States Code, Sections
1326(a) and 1326(b)(2)]
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evidence of his prior deportation. The district court
subsequently denied both motions.
Following these rulings, Cardenas-Valdez waived his right to
a trial by jury. Based on an agreed stipulation of facts, the
district court found Cardenas-Valdez guilty of the charge
contained in the indictment. On January 10, 2000, the district
court sentenced Cardenas-Valdez to fifty-seven months in prison
and three years of supervised release.
Cardenas-Valdez timely appeals.
II. STANDARD OF REVIEW
We review challenges to the sufficiency of the indictment,
which have been preserved by being raised in the district court,
under a de novo standard of review. See United States v. Guzman-
Ocampo, 236 F.3d 233, 236 (5th Cir. 2000); United States v.
Asibor, 109 F.3d 1023, 1037 (5th Cir. 1997). Furthermore,
“[b]ecause an indictment is jurisdictional, . . . the defect is
not waived by a guilty plea.” United States v. Cabrera-Teran,
168 F.3d 141, 143 (5th Cir. 1999) (internal quotations and
citations omitted); see also United States v. Marshall, 910 F.2d
1241, 1243 (5th Cir. 1990).
III. CARDENAS-VALDEZ’S CHALLENGES TO HIS CONVICTION
Cardenas-Valdez raises five issues on appeal regarding the
sufficiency of the indictment and due process. He contends: (1)
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his indictment was defective for failing to allege specific
criminal intent; (2) his indictment was defective for failing to
allege general intent; (3) his indictment was defective for
failing to allege any criminal act; (4) his indictment was
defective for failing to allege the fact of his prior conviction;
and (5) the evidence of his prior deportation should have been
suppressed because he was denied due process at his prior
deportation proceeding.
A. Specific Criminal Intent
Cardenas-Valdez concedes that, under the law of this
circuit, § 1326 does not require that an indictment allege
specific intent. See, e.g., United States v. Ortegon-Uvalde, 179
F.3d 956, 959 (5th Cir.), cert. denied, 528 U.S. 979 (1999);
United States v. Treviño-Martinez, 86 F.3d 65, 68 (5th Cir.
1996); see also, e.g., United States v. Peralt-Reyes, 131 F.3d
956, 957 (11th Cir. 1997); United States v. Ayala, 35 F.3d 423,
426 (9th Cir. 1994). Cardenas-Valdez raises this issue to
preserve it for further review by the Supreme Court.
B. General Criminal Intent
In essence, Cardenas-Valdez argues that the indictment
violates the Fifth and Sixth Amendments to the U.S. Constitution
because it does not allege, at the very least, any general intent
on his part. We recently considered this very issue. See United
States v. Berrios-Centeno, No. 00-20373, --- F.3d ---- (5th Cir.
April 27, 2001). We first held that § 1326 is a general intent
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offense (and not a strict liability offense, as advocated by the
government). See id., manuscript at 6-8. We also held that
Berrios-Centeno’s indictment sufficiently alleged the requisite
general intent as it fairly conveyed that the defendant’s
presence in the United States was a voluntary act. See id.,
manuscript at 9-12. The indictment in the instant case is almost
identical to the indictment found sufficient in Berrios-Centeno.
For the reasons stated in Berrios-Centeno, we conclude that
Cardenas-Valdez’s indictment sufficiently alleged the general
intent mens rea required of § 1326 offenses.
C. Criminal Act
Cardenas-Valdez also argues that his indictment failed to
allege that he had committed any criminal act because it charged
only a passive “status crime” of having been found in the United
States. He recognizes that this argument is foreclosed by our
decision in United States v. Tovias-Marroquin, 218 F.3d 455, 456-
57 (5th Cir.), cert. denied, 121 S. Ct. 670 (2000), and raises
this issue for preservation purposes only.
D. Prior Conviction
Cardenas-Valdez received a sentence enhancement as a result
of a prior felony conviction. He argues on appeal that prior
felony convictions are elements of the offense under 8 U.S.C.
§ 1326, as opposed to mere sentencing enhancements. He
recognizes that this issue has been resolved against him by
Almendarez-Torres v. United States, 523 U.S. 224 (1998). See
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United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000)
(stating, in a case regarding the very challenge that Cardenas-
Valdez asserts here, that lower courts are compelled to follow
directly controlling Supreme Court precedent “‘unless and until’”
the Court speaks to the contrary (citations omitted)), cert.
denied, 121 S. Ct. 1214 (2001). Cardenas-Valdez raises this
issue in order to preserve it for further review by the Supreme
Court.
E. Due Process in Prior Deportation Proceeding
Finally, Cardenas-Valdez asserts that the district court
erred by denying his motion to suppress the evidence of his prior
deportation. He argues that the administrative removal procedure
denied him due process and that the removal should not have been
used against him to establish his § 1326 offense. He claims
further that he was deprived of an impartial decisionmaker
because the INS acted as investigator, prosecutor, and
adjudicator in his deportation case. As a result, he contends
that he may obtain relief without showing any actual prejudice
from his defective deportation proceeding.
Cardenas-Valdez concedes this argument is also foreclosed by
our decisions in United States v. Benitez-Villafuerte, 186 F.3d
651 (5th Cir. 1999), cert. denied, 120 S. Ct. 838 (2000), and
United States v. Lopez-Vasquez, 227 F.3d 476 (5th Cir. 2000).
Again, he raises the argument for preservation purposes only.
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IV. CONCLUSION
For the foregoing reasons, the conviction of Adrian Daniel
Cardenas-Valdez is AFFIRMED.
8