United States v. Berrios-Centeno

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
_____________________

No. 00-20373
_____________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

RIGOBERTO BERRIOS-CENTENO

Defendant - Appellant
_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
April 27, 2001

Before KING, Chief Judge, and REAVLEY and JONES, Circuit Judges.

KING, Chief Judge:

Defendant-Appellant Rigoberto Berrios-Centeno appeals his

conviction under 8 U.S.C. § 1326. For the following reasons, we

AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant-Appellant Rigoberto Berrios-Centeno is a citizen

of El Salvador. From 1987 through 1998, Berrios-Centeno was

convicted of various crimes, such as theft, resisting arrest,

criminal mischief, and driving while intoxicated. He was also

deported in 1979, 1983, 1994, and 1997. On December 21, 1998,

Berrios-Centeno was found by an Immigration and Naturalization
Service (“INS”) agent in Houston, Texas at the Harris County

Jail. The INS verified Berrios-Centeno’s identity and confirmed

that he had not applied for or received permission from the

Attorney General of the United States to reenter the United

States. See 8 U.S.C. § 1326(a), (b)(2).1

On September 22, 1999, Berrios-Centeno was was charged in a

one-count indictment with being present in the United States as a

previously deported alien under § 1326(a) and (b)(2). Then, on

January 6, 2000, Berrios-Centeno orally moved to dismiss the

indictment because it failed to allege any intent or actus reus

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.

(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
on his part. The district court denied this motion. On January

13, 2000, Berrios-Centeno entered a guilty plea to the

indictment, and on April 18, 2000, the district court sentenced

him to serve eighty-seven months in prison and imposed a three-

year term of supervised release. Berrios-Centeno 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. SUFFICIENCY OF THE INDICTMENT

In essence, Berrios-Centeno 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.2 The

2
Berrios-Centeno 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

3
government responds first that § 1326 deals with a public welfare

offense, and as such, courts will infer from the silence in the

statute that Congress did not intend to require a mens rea

element. If we were to determine that § 1326 requires an

allegation of intent, the government next claims that this intent

is fairly conveyed by the indictment.

Stemming from the Fifth and Sixth Amendments, the core idea

underlying an indictment is notification. As to the Fifth

Amendment, the grand jury must be notified of the basis for the

charge against the defendant, “to ensure that the grand jury

finds probable cause that the defendant has committed each

element of the offense.” Cabrera-Teran, 168 F.3d at 143. The

Sixth Amendment requires, inter alia, that a defendant be fairly

informed of the charges filed against him. See United States v.

Gaytan, 74 F.3d 545, 551 (5th Cir. 1996). “An indictment is

intended to provide notice to the defendant that allows him to

intelligently consider his defense or plea.” United States v.

Angeles-Mascote, 206 F.3d 529, 532 (5th Cir. 2000); see also

Gaytan, 74 F.3d at 551 (stating that, under the Sixth Amendment,

an indictment provides a defendant “with a double jeopardy

(5th Cir. 2000) (stating, in a case regarding the very challenge
that Berrios-Centeno 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). Berrios-Centeno
raises this issue in order to preserve it for further review by
the Supreme Court.

4
defense against future prosecutions”). Therefore, “[t]o be

sufficient, an indictment must allege each material element of

the offense; if it does not, it fails to charge that offense.”

Cabrera-Teran, 168 F.3d at 143 (footnote omitted); see also

Angeles-Mascote, 206 F.3d at 532 (stating that a defect in an

indictment is not harmless when an essential element is not

specified).

By any standards, the mens rea element is “material” or

“essential.”3 See, e.g., Morissette v. United States, 342 U.S.

246, 250 (1952) (stating that “human will and a consequent

ability and duty of the normal individual to choose between good

and evil” is a universal idea). Accordingly, we must first

determine the mens rea required by § 1326 and then turn to the

question whether the indictment sufficiently alleged that mens

rea element.

1. Section 1326 Is a General Intent Offense

It is well established in our circuit that § 1326 does not

compel “specific intent.” See United States v. Ortegon-Uvalde,

179 F.3d 956, 959 (5th Cir.), cert. denied, 528 U.S. 979 (1999);

3
The government’s argument that because § 1326 is silent
as to mens rea, the mental state is not material, is without
merit. See United States v. U.S. Gypsum Co., 438 U.S. 422, 438
(1978) (stating that the omission of intent from the statute is,
without more, insufficient to establish that intent is
irrelevant); see also United States v. Cupa-Guillen, 34 F.3d 860,
863 (9th Cir. 1994) (rejecting the assertion that because a
criminal statute omits mention of intent, it will necessarily be
construed as eliminating that element from the crime (relying, in
part, on Morissette v. United States, 342 U.S. 246 (1952))).

5
Asibor, 109 F.3d at 1036; United States v. Treviño-Martinez, 86

F.3d 65, 68 (5th Cir. 1996). This conclusion is also in accord

with the decisions of our sister circuits. See, 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).

As for whether § 1326 requires general intent or strict

liability, our circuit’s jurisprudence indicates that general

intent is the default mental standard. See United States v.

Hicks, 980 F.2d 963, 974 (5th Cir. 1992) (stating in

parenthetical that “courts should presume statutes require only

general intent” (citing United States v. Lewis, 780 F.2d 1140,

1143 (4th Cir. 1986))). The Supreme Court and our prior caselaw

also counsel us that strict liability should be prudently and

cautiously attributed to criminal statutes. See Staples v.

United States, 511 U.S. 600, 607 (1994) (accentuating that

“public welfare offenses [which result in strict liability] have

been created by Congress, and recognized by [the Supreme] Court,

in ‘limited circumstances’” (quoting United States v. U.S. Gypsum

Co., 438 U.S. 422, 437 (1978))); United States v. Garrett, 984

F.2d 1402, 1409 (5th Cir. 1993) (stating that “Congress is fully

capable of creating strict liability crimes when” it actually

intends to do so); see also United States v. Anton, 683 F.2d

1011, 1015 (7th Cir. 1982) (discussing in depth why § 1326 does

not create a public welfare offense).

6
 Furthermore, in United States v. Guzman-Ocampo, this court

held that “we now join the majority of jurisdictions that have

addressed this issue in deciding that § 1326 is a general intent

offense.” 236 F.3d 233, 238-39 (5th Cir. 2000). Guzman-Ocampo

is not directly on point because it involved a situation in which

the defendant had not challenged his indictment in the district

court; therefore, a panel of this court addressed his challenge

under a standard of “maximum liberality.” See id. at 236. The

instant case presents a situation in which a defendant did

preserve his challenges to the indictment in the district court,

and thus, the indictment is reviewed under a de novo standard of

review. However, the Guzman-Ocampo court itself noted with

approval an opinion that came to the same conclusion in the

context of the defendant raising this argument before the

district court. See id. at 239 n.12 (citing United States v.

Hernandez-Landaverde, 65 F. Supp. 2d 567 (S.D. Tex. 1999)).

The indications given by the Guzman-Ocampo court, that

general intent is the appropriate mental state for § 1326

offenses in all circumstances, is in accord with our sister

circuits. See, e.g., United States v. Gutierrez-Gonzalez, 184

F.3d 1160, 1165 (10th Cir.), cert. denied, 528 U.S. 1011 (1999);

United States v. Ortiz-Villegas, 49 F.3d 1435, 1437 (9th Cir.

1995); United States v. Espinoza-Leon, 873 F.2d 743, 746 (4th

Cir.), cert. denied, 492 U.S. 924 (1989). But see generally

Anton, 683 F.2d at 1015-18 (intimating that something more than

7
general intent is required by allowing a limited mistake of law

defense, but also specifically rejecting strict liability).

Therefore, we hold that § 1326 is a general intent offense.

8
 2. Indictment Sufficiently Alleged General Intent

We now determine whether Berrios-Centeno’s indictment4

sufficiently alleged the requisite general intent. General

intent is broadly (and somewhat circularly) defined as the state

of mind required for certain crimes not requiring specific intent

or imposing strict liability. See BLACK’S LAW DICTIONARY 813 (7th

ed. 1999). Our sister circuits have provided shape to this

concept under § 1326 by formulating the general intent element as

a voluntary act. In essence, these courts have contrasted

specific and general intent as follows: specific intent concerns

willful and knowing engagement in criminal behavior, while

general intent concerns willful and knowing acts. Thus, a

defendant may not “specifically intend” to act unlawfully, but he

did “intend” to commit the act. See, e.g., United States v.

4
The indictment against Berrios-Centeno states:

THE GRAND JURY CHARGES THAT:

Count One
On or about December 21, 1998 in the Houston
Division of the Southern District of Texas,

RIGOBERTO BERRIOS-CENTENO,

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 the consent of the Attorney General of the
United States to apply for readmission into the United
States.

[Violation: Title 8, United States Code, Section
1326(a) and (b)(2)]

9
Parga-Rosas, 238 F.3d 1209, 1213 (9th Cir. 2001) (“Alleging that

the defendant is a deported alien subsequently found in the

United States without permission suffices [to allege general

intent].”); United States v. Martus, 138 F.3d 95, 97 (2d Cir.

1998) (“[T]he government need only prove a voluntary act of

reentry or attempted reentry by the defendant that is not

expressly sanctioned by the Attorney General.”); Espinoza-Leon,

873 F.2d at 746 (“[A] conviction under § 1326 requires proof

merely of a voluntary act by defendant.”); United States v.

Miranda-Enriquez, 842 F.2d 1211, 1212 (10th Cir. 1988) (“To

secure a section 1326 conviction the government must be prepared

to show that the defendant’s acts were intentional. No intent to

break the law . . . must be proved.”); cf. Guzman-Ocampo, 236

F.3d at 237 (“A general intent mens rea under § 1326 . . .

requires that a defendant reenter the country voluntarily.”).

We agree with our sister circuits that general intent of the

defendant to re-enter the United States, which is analogous to

voluntary action by the defendant, “may be inferred by the fact

that a defendant was previously ‘deported’ . . . and subsequently

‘found in’ the United States,” without consent.5 See Hernandez-

5
Berrios-Centeno asserts that this formulation results in
the defendant having to take on the government’s burden of proof.
We disagree because the formulation fairly portrays voluntary
action. See United States v. Carll, 105 U.S. 611, 613 (1881)
(stating that the indictment must allege “all the facts necessary
to bring the case within that intent”). Thus, by not using the
magic words “voluntarily entered” (advocated by Berrios-Centeno),
the indictment does not punt the general intent requirement to

10
Landaverde, 65 F. Supp. 2d at 572; cf. Guzman-Ocampo, 236 F.3d at

239.6

In this case, the indictment fairly conveyed that Berrios-

Centeno’s presence was a voluntary act from the allegations that

he was deported, removed, and subsequently present without

consent of the Attorney General. See, e.g., Parga-Rosas, 238

F.3d at 1214; Hernandez-Landaverde, 65 F. Supp. 2d at 572

(stating that “the general intent element of § 1326 is satisfied

the defendant. See Guzman-Ocampo, 236 F.3d at 238 (noting that
other circuits have also recognized that such a formulation of
general intent is highly unlikely to encompass involuntary
action). In this regard, we also note that Berrios-Centeno’s
reliance on United States v. Mekjian is inapposite because that
case dealt with a specific intent statute, 18 U.S.C. § 1001,
which contained the terms “knowingly and willfully.” See 505
F.2d 1320, 1324 (5th Cir. 1975).
6
Berrios-Centeno argues that Guzman-Ocampo found the
indictment to be “statutorily sufficient,” but the case did not
address “constitutional insufficiency.” We do not agree. The
Guzman-Ocampo court began by laying out the constitutional
requirements for sufficiency of an indictment, which include that
the indictment contain each material element of the offense. See
236 F.3d at 236. It then determined that a general intent mens
rea was such a material element (implicit in § 1326). See id. at
238-39. Finally, the court concluded that the indictment alleged
every statutorily required element (both explicit and implicit),
see id. at 239, thus finding the indictment to be
constitutionally sufficient.
Berrios-Centeno also relies upon United States v. Carll
in this regard. Carll stands for the unremarkable proposition
that placing the words of the statute (upon which the offense is
predicated) in an indictment does not always render the
indictment constitutionally sufficient. See 105 U.S. at 612-13.
In the instant case, the language of the indictment (which tracks
the language of § 1326) fairly informs the reader of all of the
material elements of the offense, thus ensuring that the grand
jury passed upon all essential facts and that the defendant was
adequately notified of the charge against him.

11
by an affirmative allegation in the indictment that the defendant

was ‘found in’ the United States after being properly ‘deported’

as that term is contemplated in the statute”).

Therefore, the indictment sufficiently alleged the general

intent mens rea required of § 1326 offenses.

IV. CONCLUSION

For the foregoing reasons, the conviction of Defendant-

Appellant Rigoberto Berrios-Centeno is AFFIRMED.

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