United States v. Gomez-Lozano ( 2001 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 00-20223
(Summary Calendar)
_________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
INMER ESAUC GOMEZ-LOZANO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-593-1
January 31, 2001
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Inmer Esauc Gomez-Lozano (“Gomez”) was indicted and pleaded guilty to being “an alien
previously deported and removed from the United States, [who] was found present in the United
States at Houston, Texas, without having obtained consent from the Attorney General of the United
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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States to apply for readmission into the United States,” in violation of 8 U.S.C. § § 1326(a), (b)(2).
Gomez was sentenced to 77 months imprisonment, and three years supervised release. On appeal,
Gomez challenges his conviction on the following five grounds: (1) the indictment was defective
because it improperly charged him with a status offense; (2) the indictment was defective because it
did not expressly allege general intent; (3) the indictment was defective because it did not expressly
allege specific intent; (4) the indictment was defective because it did not expressly allege a prior
felony conviction; (5) the court erred in enhancing the offense level pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A) based on his prior state felony conviction for possession of a controlled substance.
For the reasons set forth below, we affirm.
The first four claims proffered by Gomez address the sufficiency of the indictment. We review
de novo a claim that an indictment is insufficient. See United States v. Cabrera-Teran, 168 F.3d 141,
143 (5th Cir. 1999). Gomez first claims that the indictment merely charged him with occupying the
status of being a previously deported alien present in the United States, but failed to charge him with
the commission of an act. We rejected this argument in United States v. Tovias-Marroquin, 218 F.3d
455, 456-57 (5th Cir. 2000), and therefore Gomez’s claim is precluded.
Second, Gomez asserts that his indictment was flawed because it failed to allege a mens rea,
specifically it failed to allege that Gomez had the general intent to act in violation of § 1326. This
argument was addressed in United States v. Guzman-Ocampo, No. 99-20968, 2000 WL 1868226at *3 (5th Cir. Dec. 21, 2000), where we determined that while “§ 1326 is a general intent offense”
an indictment containing the same language as Gomez’s indictment alleged each of the “statutorily
required element[s] of § 1326.” Accordingly, Gomez’s second claim is foreclosed by our holding in
Guzman-Ocampo.
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Third, Gomez claims that § 1326 requires that the government assert and prove that Gomez
had the specific intent to violate § 1326. We have already held in United States v. Trevino-Martinez,
86 F.3d 65, 68-69 (5th Cir. 1996) that § 1326 does not require proof of specific intent, and therefore
this claim is also meritless.
Fourth, Gomez argues that a prior felony conviction is an element of the offense of reentering
the United States after being deported, and because his indictment failed to allege that he had a prior
conviction it was insufficient. This argument has been precluded by the Supreme Court’s holding in
United States v. Almendarez-Torres, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (holding
that the penalty provision in § 1326 for illegal reentry after deportation was a sentencing factor and
not an element of the offense). As we stated in United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000), “the Supreme Court expressly declined to overrule Almendarez-Torres” in Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000), and therefore we are bound by the
holding in Almendarez-Torres.
Fifth, Gomez argues that the sixteen-level increase to his base offense level under
§ 2L1.2(b)(1)(A) was incorrect because his conviction for possession of a controlled substance did
not constitute an aggravated felony because it was not a drug trafficking crime. We review de novo
the district court’s interpretation of the Sentencing Guidelines, and constitutional claims. United
States v. Lyckman, 2000 WL 1800131, *2 (5th Cir. Dec. 7, 2000); United States v. Romero-Cruz,
201 F.3d 374, 377 (5th Cir. 2000). Gomez’s argument regarding the sentence enhancement is
foreclosed due to our decision in United States v. Hinojosa-Lopez, 130 F.3d 691, 694 (5th Cir. 1997)
(state conviction for possession of marijuana constituted an aggravated felony because it was an
offense punishable under the Controlled Substances Act and was a felony under state law).
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Although Gomez asserts that his right to due process will be infringed by our finding that
possession of a controlled substance may constitute an aggravated felony for Sentencing Guideline
purposes, Gomez’s argument is unavailing. Gomez contends that the aggravated felony definition is
ambiguous, and therefore the enhancement provision should not have been applied because it violated
the requirements of due process. In the alternative, Gomez asserts that the rule of lenity should have
been applied. In United States v. Pearson, we established that “[d]ue process does not mandate . .
. either notice, advice, or a probable prediction of where, within the statutory range, the guideline
sentence will fall.” 910 F.2d 221, 223 (5th Cir. 1990). That is not to say that there is no notice
requirement with regard to a possible sentence enhancement, but such notice was adequately provided
to Gomez in his indictment and pre-sentence report. See United States v. Cortinas, 142 F.3d 242,
250 (5th Cir. 1998) (defendant’s due process rights were not violated when notice of the
government’s intention to seek enhancement was contained in Presentence Investigation Report).
Furthermore, Gomez’s rule of lenity argument fails because, as we stated in United States
v. Noe, 634 F.2d 860, 862 (5th Cir. 1981),“the doctrine of lenity is not invoked until a court,
‘seiz[ing] every thing from which aid can be derived . . . is left with an ambiguous statute.’” Because
we applied § 2L1.2(b) under similar circumstances in Hinojosa-Lopez without difficulty, and because
other circuits have also applied this statute without difficulty, there is no indication that the statute
is ambiguous. Therefore Gomez’s rule of lenity claim also fails.
For the foregoing reasons, we AFFIRM.
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