United States v. Sandate-Lozano ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41460
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE SANDATE-LOZANO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-00-CR-919-ALL
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October 25, 2001
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jorge Sandate-Lozano (“Sandate”) appeals his conviction and
sentence after the district court found him guilty of being found
in the United States after having been previously deported
subsequent to an aggravated-felony conviction, in violation of 8
U.S.C. § 1326. He argues that the district court erred in
applying U.S.S.G. § 2L1.2(b)(1)(A) because the rule of lenity
required the court to interpret the term “drug trafficking crime”
to exclude his state conviction for possession of cocaine. He
*
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that this opinion should not be published and is not precedent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. 00-41460
-2-
also argues that his indictment does not charge an offense
because it fails to allege any general intent on his part.
The district court did not err in applying U.S.S.G.
§ 2L1.2(b)(1)(A). It follows from the interpretations reached by
this court in United States v. Hernandez-Avalos, 251 F.3d 505(5th Cir. 2001), and United States v. Hinojosa-Lopez, 130 F.3d
691 (5th Cir. 1997), that the term “drug trafficking crime” is
not so ambiguous as to require an application of the rule of
lenity. See Hernandez-Avalos, 251 F.3d at 508-09; Hinojosa-
Lopez, 130 F.3d at 693-94.
Sandate’s indictment sufficiently alleged the general intent
required of 8 U.S.C. § 1326 offenses. Sandate’s “indictment
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.” United States
v. Berrios-Centeno, 250 F.3d 294, 299-300 (5th Cir. 2001).
AFFIRMED.