United States v. Cho ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10378
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IL SOO CHO,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(3:99-CR-328-ALL-L)
March 2, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Il Soo Cho (“Cho”) appeals his conviction and sentence,
following a jury trial, for illegal reentry after deportation, a
violation of 8 U.S.C. § 1326. As an alien previously deported
after an aggravated felony, Cho was sentenced to 71 months’
imprisonment pursuant to 8 U.S.C. § 1326(b)(2).
Cho first asserts the district court erred by refusing to give
two requested jury instructions: 1) that the jury must find Cho
knew he was not entitled to reenter the United States without first
obtaining the consent of the Attorney General; and 2) that a
*
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this opinion should not be published and is not precedent except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.
reasonable mistaken belief he was not required to obtain express
consent of the Attorney General constitutes a complete defense.
The refusal to give a particular instruction is error only if the
instruction “(1) was substantially correct, (2) was not
substantially covered in the charge delivered to the jury, and (3)
concerned an important issue so that the failure to give it
seriously impaired the defendant’s ability to present a given
defense”. United States v. Pennington, 20 F.3d 593, 600 (5th Cir.
1994) (citation omitted). Both of Cho’s arguments fail on the
first prong: § 1326 does not require proof of specific intent, and
a “reasonable mistake” defense is not available. See United States
v. Trevino-Martinez, 86 F.3d 65, 69 (5th Cir. 1996), cert. denied,
520 U.S. 1105 (1997). Furthermore, Cho concedes that the challenge
is foreclosed by precedent, and is raised solely to preserve it for
possible further review.
Cho next maintains the district court erred by refusing to
include a jury instruction regarding the voluntariness of his
statements to INS Agents. “[O]nce an issue arises as to the
voluntariness of a confession, the district court should conduct a
voluntariness hearing and give the instruction required by the
statute”. United States v. Iwegbu, 6 F.3d 272, 274 (5th Cir.
1993); see 18 U.S.C. § 3501(a). Even if no specific request is
made for a voluntariness hearing, the district court must comply
with the statute sua sponte when the evidence clearly raises a
question of voluntariness. See Iwegbu, 6 F.3d at 274. However,
there is no evidence or testimony to suggest that Cho’s statements
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were not voluntary; Cho did not deny making the statements or raise
any complaint about the circumstances in which they were made. Cho
acknowledges he raises the issue only to preserve it, and that it
will merit reversal only if his previous claim succeeds.
This court’s decision in United States v. Terrazas-Carrasco,
861 F.2d 93, 95 (5th Cir. 1988), also suggests that, even if it was
error to refuse the instruction, any error was harmless. In
Terrazas-Carrasco, the court concluded that, even if the district
court erred by refusing to give the requested instruction, “any
such error must be considered harmless beyond a reasonable doubt,
given the other overwhelming evidence of defendant’s guilt”. See
Terrazas-Carrasco, 861 F.2d at 95. Cho admits that the
“overwhelming evidence” of guilt which rendered the errors in
Terrazas-Carrasco harmless included the same kinds of evidence
present in this case.
Finally, Cho contends that, in view of the recent decision in
Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), his sentence should
be vacated. Cho notes that his amended indictment removed any
reference to his previous felony convictions and recited only facts
supporting a charge of “simple reentry” under 8 U.S.C. § 1326(a),
yet he was sentenced to a term in excess of that subsection’s two-
year statutory maximum. Cho acknowledges that this argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224(1998). In Almendarez-Torres, the Supreme Court held that 8 U.S.C.
§ 1326(b) states a sentencing factor, not a separate criminal
offense, and thus the aggravated felony triggering the increased
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maximum penalty need not be alleged in the indictment nor proved to
a jury beyond a reasonable doubt. See Almendarez-Torres, 523 U.S.
at 235; Apprendi, 120 S. Ct. at 2363. Once again, Cho concedes the
issue is foreclosed by Supreme Court precedent and is raised only
to preserve it.
AFFIRMED
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