IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20454
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS MONTES-LIRA, also known as Jesus Lira,
also known as Jesus L. Lira, also known as Jesus L. Montes,
also known as Gerardo Servantes, also known as Chui,
also known as Gerardo Cervantes,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-529-ALL
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August 23, 2001
Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.
PER CURIAM:*
Jesus Montes-Lira (Montes) appeals his conviction and
sentence after pleading guilty to a charge of being found present
in the United States after deportation, a violation of 8 U.S.C.
§ 1326. Montes first challenges a sixteen-level increase to his
base offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A).
Specifically, he argues that his prior Texas conviction for
possession of less than one gram of cocaine does not qualify as
*
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that this opinion should not be published and is not precedent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. 00-20454
-2-
an “aggravated felony” for purposes of § 2L1.2. Montes’
argument, however, is foreclosed by our decision in United States
v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997). Montes
maintains that this issue is not foreclosed by Hinojosa-Lopez
because he raises it as a rule-of-lenity argument. “The rule of
lenity . . . applies only when, after consulting traditional
canons of statutory construction, [a court is] left with an
ambiguous statute.” United States v. Shabani, 513 U.S. 10, 17
(1994)(emphasis added). It follows from the interpretation
reached by this court in Hinojosa-Lopez that the term “aggravated
felony” is not so ambiguous as to require an application of the
rule of lenity. See Hinojosa-Lopez, 130 F.3d at 693-94.
Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000),
Montes next argues that the aggravated-felony conviction used to
enhance his sentence was an element of the offense that should
have been alleged in the indictment. As Montes acknowledges,
however, his argument remains foreclosed 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 that Apprendi did not
overrule Almendarez-Torres), cert. denied, 121 S. Ct. 1214
(2001).
Finally, Montes argues that his indictment does not charge
an offense because it fails to allege any general intent on his
part. Montes’ indictment, however, “fairly conveyed that [his]
presence was a voluntary act from the allegations that he was
deported, removed, and subsequently present without consent of
the Attorney General.” See United States v. Berrios-Centeno,
No. 00-20454
-3-
250 F.3d 294, 299-300 (5th Cir. 2001). Accordingly, his
indictment sufficiently alleged the general intent required of 8
U.S.C. § 1326 offenses. See id. at 298-300.
AFFIRMED.