United States v. Lopez-Quintero ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-40973
Summary Calendar
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
MAGDALENO LOPEZ-QUINTERO
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-00-CR-417-1
_________________________________________________________________
May 31, 2001
Before KING, Chief Judge, and JONES and STEWART, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Magdaleno Lopez-Quintero appeals his
conviction under 8 U.S.C. § 1326. For the following reasons, we
AFFIRM.
*
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this opinion should not be published and is not precedent except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.
I. FACTUAL AND PROCEDURAL BACKGROUND
On March 28, 2000, Defendant-Appellant Magdaleno1 Lopez-
Quintero, a citizen of Honduras, was apprehended (along with two
other undocumented aliens) by U.S. Border Patrol agents in
Laredo, Texas. Lopez-Quintero, who has a history of criminal
convictions and deportations, admitted to illegally entering the
United States by wading across the Rio Grande River near Laredo.
On April 18, 2000, Lopez-Quintero was charged in a one-count
indictment with being present in the United States as a
previously deported alien. See 8 U.S.C. § 1326.2On May 8, 2000, Lopez-Quintero filed a motion to dismiss the
1
Throughout the record, Lopez-Quintero’s first name
appears with two different spellings, i.e., as “Magdaleno” and
“Magdeleno.” As both he and the Court of Appeals for the Fifth
Circuit docket sheet utilize the former spelling, we will also do
so in this opinion (except when quoting documents containing the
latter spelling).
2
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.
8 U.S.C. § 1326 (1999).
2
indictment,3 arguing that it did not allege any act or intent on
his part. The district court denied this motion on May 22, 2000,
and the next day, Lopez-Quintero pled guilty to the indictment.
The district court subsequently sentenced him to seventy months
in prison and three years of supervised release.
Lopez-Quintero 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,
3
The indictment against Lopez-Quintero states:
THE GRAND JURY CHARGES THAT:
On or about March 28, 2000, in the Southern
District of Texas and within the jurisdiction of the
Court, Defendant,
MAGDELENO LOPEZ-QUINTERO,
an alien who had previously been denied admission,
excluded, deported, or removed, or has departed the
United States while an order of exclusion, deportation
or removal is outstanding, and having not obtained the
consent of the Attorney General of the United States
for reapplication by the Defendant for admission into
the United States, was thereafter found in the United
States.
In violation of Title 8, United States Code, Section
1326.
3
“[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).4
III. SUFFICIENCY OF THE INDICTMENT
In essence, Lopez-Quintero 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.5 We recently
considered this very issue. See United States v. Berrios-
Centeno, No. 00-20373, --- F.3d ---- (5th Cir. April 27, 2001).
We first held that § 1326 is a general intent offense (and not a
4
Therefore, the government’s argument, that Lopez-
Quintero waived his challenges to the indictment because he
entered an unconditional guilty plea, is without merit. United
States v. Bell, 966 F.2d 914 (5th Cir. 1992), on which the
government relies, is not to the contrary. Bell held that an
unconditional guilty plea waives all non-jurisdictional defects.
See id. at 915.
5
Lopez-Quintero 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
(5th Cir. 2000) (stating, in a case regarding the very challenge
that Lopez-Quintero 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). Lopez-Quintero
raises this issue in order to preserve it for further review by
the Supreme Court.
4
strict liability offense, as advocated by the government). See
id., manuscript at 6-8. We also held that Berrios-Centeno’s
indictment sufficiently alleged the requisite general intent as
it fairly conveyed that the defendant’s presence in the United
States was a voluntary act. See id., manuscript at 9-12. The
indictment in the instant case is almost identical to the
indictment found sufficient in Berrios-Centeno. For the reasons
stated in Berrios-Centeno, we conclude that Lopez-Quintero’s
indictment sufficiently alleged the general intent mens rea
required of § 1326 offenses.
IV. CONCLUSION
For the foregoing reasons, the conviction of Magdaleno
Lopez-Quintero is AFFIRMED.
5