IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-41081
Summary Calendar
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JOAQUIN ESTRADA-CASTRO
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-00-CR-453-1
_________________________________________________________________
May 18, 2001
Before KING, Chief Judge, and SMITH and PARKER, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Joaquin Estrada-Castro 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this opinion should not be published and is not precedent except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 July 7, 1997, Defendant-Appellant Joaquin Estrada-Castro,
a citizen of Mexico, was apprehended (along with another
undocumented alien) by U.S. Border Patrol agents in Encinal,
Texas. Estrada-Castro, who has a history of criminal convictions
and a prior deportation, admitted to illegally entering the
United States by wading across the Rio Grande River near Laredo,
Texas. On May 2, 2000, Estrada-Castro was charged in a one-count
indictment with being present in the United States as a
previously deported alien. See 8 U.S.C. § 1326.1
On May 19, 2000, Estrada-Castro filed a motion to dismiss
the indictment,2 arguing that it did not allege any act or intent
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
obtain such advance consent . . ., shall be fined under
Title 18, or imprisoned not more than 2 years, or both.
8 U.S.C. § 1326 (1999).
2
The indictment against Estrada-Castro states:
THE GRAND JURY CHARGES THAT:
On or about April 8, 2000, in the Southern
2
on his part. The district court denied this motion on May 24,
2000, and, on June 19, Estrada-Castro pled guilty to the
indictment. The district court subsequently sentenced him to
fifty-seven months3 in prison and three years of supervised
release. Estrada-Castro 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,
District of Texas and within the jurisdiction of the
Court, the defendant,
JOAQUIN ESTRADA-CASTRO,
an alien who 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 having not obtained the consent of the
Attorney General of the United States for reapplication
by the Defendant for admission into the United States,
was thereafter found in the United States.
In violation of Title 8, United States Code, Section
1326.
3
The Probation Department had calculated Estrada-
Castro’s criminal history category to be V. Estrada-Castro
objected at sentencing to this calculation, arguing that a prior
conviction was unsupported by a judgment and conviction. The
district court agreed and reduced Estrada-Castro’s criminal
history category to IV, which in turn reduced his punishment
range under the U.S. Sentencing Guidelines.
3
“[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. SUFFICIENCY OF THE INDICTMENT
In essence, Estrada-Castro argues that the indictment
violates the Fifth and Sixth Amendments to the U.S. Constitution
because it does not allege any intent on his part.4 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 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
4
Estrada-Castro also raises an issue regarding his
sentence enhancement, which he received as a result of a prior
felony conviction. He argues 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 United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000) (stating, in a case regarding the very challenge
that Estrada-Castro 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). Estrada-Castro
raises this issue in order to preserve it for further review by
the Supreme Court.
4
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 Estrada-Castro’s
indictment sufficiently alleged the general intent mens rea
required of § 1326 offenses.
IV. CONCLUSION
For the foregoing reasons, the conviction of Joaquin
Estrada-Castro is AFFIRMED.
5