IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20141
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERARDO MIRAMONTES-MARISCAL,
also known as Gerardo Miramontes,
also known as Geraldo M. Miramontes,
also known as Gerando Miramontes
Mariscal, also known as Buddy
Miramontes, also known as Gerardo M.
Miramontes, also known as Buddy,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-516-ALL
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June 13, 2001
Before WIENER, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Gerardo Miramontes-Mariscal 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,
Miramontes-Mariscal 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
*
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that this opinion should not be published and is not precedent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. 00-20141
-2-
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 F.3d 455, 456-57 (5th Cir.),
cert. denied, 121 S. Ct. 670 (2000).
Next, Miramontes-Mariscal 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, Miramontes-Mariscal argues that the indictment was
insufficient because it failed to allege any mens rea. This
court’s recent decision in United States v. Berrios-Centeno, ___
F.3d ___ (5th Cir. Apr. 27, 2001, No. 00-20373), 2001 WL 435494,
is dispositive. The instant indictment fairly conveyed that
Miramontes-Mariscal’s presence was a voluntary act from the
allegations that he was deported, removed, and subsequently
present without consent of the Attorney General.
Accordingly, the judgment of conviction is AFFIRMED.