United States v. Galindo

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 17 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 03-2297
v. (D.C. No. CR-02-2096-JC)
(D.N.M.)
NICOLAS GALINDO,

Defendant - Appellant.

ORDER AND JUDGMENT *

Before KELLY, HENRY, and TYMKOVICH, Circuit Judges. **

Defendant-Appellant Nicolas Galindo appeals from his conviction and

sentence under 8 U.S.C. § 1326 for his entry after having been previously

deported following his conviction for an aggravated felony. He challenges the

sufficiency of the indictment. Our jurisdiction arises under 28 U.S.C. § 1291, and

we affirm.

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
 Mr. Galindo was arrested on October 26, 2002 in Taos, New Mexico on an

outstanding warrant for Aggravated Battery With A Deadly Weapon. 2 R. at 3, ¶

4. In a one-count indictment, Mr. Galindo was charged as follows:

On or about the 26th Day of October, 2002, the defendant,
NICOLAS GALINDO, an alien, was found in Taos County, in the
State and District of New Mexico, contrary to law in that the
defendant had been deported, excluded and removed and departed the
United States on or about May 1, 2001, while an order of exclusion,
deportation and removal was outstanding subsequent to a conviction
for an aggravated felony, to wit, Aggravated Battery (deadly weapon)
in Taos County, New Mexico and the said defendant had not obtained
the consent of the Attorney General of the United States for
reapplication by the defendant for admission into the United States.
In violation of 8 U.S.C. § 1326(a)(1) and (2), and 8 U.S.C. §
1326(b)(2).

1 R. Doc. 10. Mr. Galindo pleaded guilty to the indictment on February 28, 2003.

1 R. Doc. 25, 26. He was sentenced to 57 months in prison and two years of

unsupervised release and ordered to pay a $100 special penalty assessment. 1 R.

Doc. 35.

On appeal, Mr. Galindo argues that his conviction should be overturned

because the indictment did not allege the element of intent, thus violating his

Fifth and Sixth Amendment rights. Thus he argues the court committed plain

error by failing to dismiss the indictment. Mr. Galindo did not challenge the

sufficiency of the indictment below and pleaded guilty to the offense. By

entering a voluntary plea of guilty, Mr. Galindo waived all non-jurisdictional

defenses. United States v. Flynn, 309 F.3d 736, 739 (10th Cir. 2002); United

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States v. Davis, 900 F.2d 1524, 1525-26 (10th Cir. 1990); see also Tollett v.

Henderson, 411 U.S. 258, 267 (1973) (“When a criminal defendant has solemnly

admitted in open court that he is in fact guilty of the offense with which he is

charged, he may not thereafter raise independent claims relating to the deprivation

of constitutional rights that occurred prior to the entry of the guilty plea.”).

Given that Mr. Galindo’s challenge regarding the omission of the intent element

in the indictment does not present a “jurisdictional” defect, see United States v.

Cotton, 535 U.S. 625, 631 (2002), he has waived all but plain error review. We

also note Mr. Galindo has made no assertion that his plea was involuntary or

unknowing, and we find no support for this conclusion.

Under our review for plain error, Mr. Galindo’s claim fails. The Fifth

Amendment provides that no person shall be held to answer for “a capital, or

otherwise infamous crime, unless on a presentment or indictment of a Grand

Jury.” U.S. Const. amend. V. The Sixth Amendment provides that in “all

criminal prosecutions, the accused shall enjoy the right . . . to be informed of the

nature and cause of the accusation.” U.S. Const. amend. VI. An indictment

meets these constitutional requirements “if it sets forth the elements of the

offense charged, puts the defendant on fair notice of the charges against which he

must defend, and enables the defendant to assert a double jeopardy defense.”

United States v. Hathaway, 318 F.3d 1001, 1009 (10th Cir. 2003); see also United

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States v. Bolton, 68 F.3d 396, 400 (10th Cir. 1995).

Although § 1326 is silent regarding the required intent, this court has

concluded that the statute requires a showing of general intent–“that the defendant

willfully and knowingly reentered the United States and that he did so without the

Attorney General’s permission.” United States v. Gutierrez-Gonzalez, 184 F.3d

1160, 1165 (10th Cir. 1999). Because general intent is an element of the offense,

it must be alleged in the indictment. See United States v. Berrios-Centeno, 250

F.3d 294, 297 (5th Cir. 2001).

Although we have not previously addressed the constitutional sufficiency of

an indictment alleging a violation of § 1326 that does not explicitly include the

intent element, we agree with our sister circuits that have addressed this issue.

See United States v. Parga-Rosas, 238 F.3d 1209, 1213 (9th Cir. 2001) (finding

an indictment sufficient if it alleges “that the defendant is a deported alien

subsequently found in the United States without permission”); United States v.

Guzman-Ocampo, 236 F.3d 233, 239 (5th Cir. 2000) (finding an almost identical

indictment sufficient because the indictment “fairly imported that [the

defendant’s] reentry was a voluntary act in view of the allegations that he had

been excluded, deported, and removed and that he was present without having

obtained the consent of the Attorney General.”). The indictment stated that Mr.

Galindo was “found in” the United States, after having been previously “deported,

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excluded and removed,” without the “consent of the Attorney General of the

United States.” 1 R. Doc. 10. Given the allegations in the indictment, it appears

the language adequately included all the material elements of the offense,

including that of intent, thus ensuring that the grand jury passed on all of the

essential elements of the offense and that Mr. Galindo was adequately notified of

the charges against him.

Our conclusion is reinforced by the reference in the indictment to § 1326(a)

and (b). “Although we have held that reference to the charging statute in the

body of the indictment is not alone a sufficient substitute for the recitation of an

essential element, we have held that reference to the statute can be a factor when

assessing the sufficiency of an indictment.” United States v. Avery, 295 F.3d

1158, 1175-76 (10th Cir. 2002) (internal quotation marks, citations, and

alterations omitted). Thus we conclude the failure of the indictment to

specifically allege the element of intent under § 1326 did not constitute plain

error in this case.

AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr.
Circuit Judge

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