United States v. Ramos-Flores ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-21143
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELIAZAR RAMOS-FLORES, also known as Eleazar Ramos-Flores,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-440-1
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August 22, 2001
Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.
PER CURIAM:*
Eliazar Ramos-Flores appeals his guilty-plea conviction and
sentence for illegal reentry into the United States by a
previously deported alien in violation of 8 U.S.C. § 1326(a),
(b)(2). First, Ramos argues that his indictment was insufficient
because it failed to allege an actus rea and instead accused him
of only the status of being a previously deported alien present
in the United States. 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).
*
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that this opinion should not be published and is not precedent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. 99-21143
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Next, Ramos argues that his indictment was insufficient
because it failed to allege a specific intent element. He
concedes, however, that this argument is foreclosed by United
States v. Trevino-Martinez, 86 F.3d 65, 68-69 (5th Cir. 1996),
and he raises the issue to preserve it for possible Supreme Court
review.
Finally, Ramos argues that his indictment was insufficient
because it failed to allege general intent or any mens rea. This
court’s recent decision in United States v. Berrios-Centeno, 250
F.3d 294 (5th Cir. 2001), is dispositive. Ramos’ indictment
sufficiently alleged the general intent required for an 8 U.S.C.
§ 1326 offense, as it fairly conveyed that Ramos’ presence in the
United States was a voluntary act by alleging that he had been
deported and removed from the United States, but was subsequently
found present in the United States without the Attorney General’s
consent. See Berrios-Centeno, 250 F.3d at 298-300.
The district court’s judgment is AFFIRMED.