United States v. Sanchez-Rivera ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20094
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUSTAVO SANCHEZ-RIVERA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-479-1
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August 23, 2001
Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.
PER CURIAM:*
Gustavo Sanchez-Rivera argues that the indictment failed to
allege any acts on his part showing a general intent to illegally
reenter the United States. General intent to reenter the United
States is analogous to a voluntary act by the defendant, and “may
be inferred by the fact that a defendant was previously deported
. . . and subsequently found in the United States, without
consent.” See United States v. Berrios-Centeno, 250 F.3d 294,
299 (5th Cir. 2001) (internal quotations and citations omitted).
The indictment, charging that Sanchez was deported, removed from
*
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that this opinion should not be published and is not precedent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. 00-20094
-2-
the United States, and was subsequently found present in the
United States without obtaining permission to reapply, reflected
that Sanchez’s presence in this country was a voluntary act.
Thus, the indictment sufficiently alleged the general intent mens
rea required to charge an offense under 8 U.S.C. § 1326(a), (b).
Sanchez argues in the alternative that the indictment was
fatally defective because it did not allege a specific intent
element. Sanchez concedes that this argument is foreclosed by
this court’s precedent. See United States v. Ortegon-Uvalde, 179
F.3d 956, 959 (5th Cir.), cert. denied, 528 U.S. 979 (1999).
However, Sanchez wishes to preserve the issue for review by the
United States Supreme Court.
Sanchez also argues that the indictment is fatally defective
because it fails to allege that he committed any act in violation
of 8 U.S.C. § 1326 or any act at all. He argues that if 8 U.S.C.
§ 1326 authorizes prosecution for his mere presence, it is an
unconstitutional status offense.
This argument was rejected in United States v. Tovias-
Marroquin, 218 F.3d 455, 456-57 (5th Cir.), cert. denied, 121 S.
Ct. 670 (2000), which held that the circumstance of being “found
in” the United States requires the defendant to do the act of
reentering without permission after being deported. Thus, 8
U.S.C. § 1326 does not punish a defendant in the absence of the
commission of an act.
AFFIRMED.