United States v. Molina-Portillo ( 2002 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-21166
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAXIMILIANO MOLINA-PORTILLO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-405-2
February 19, 2002
Before POLITZ, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Maximiliano Molina-Portillo appeals his conviction following a guilty plea to
aiding and abetting the possession of a counterfeit and falsely made Immigration and
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Naturalization Service (INS) Form I-131, a violation of 18 U.S.C. §§ 2 & 1546(a).
He contends that the indictment was constitutionally insufficient and that the factual
basis of his plea failed to establish the charged offense.
We review Molina’s challenge to the sufficiency of the indictment, raised for
the first time on appeal, under the standard of “maximum liberality.”1 Construing
the indictment liberally as we must, see United States v. Cabrera-Teran,2 we hold
that the indictment’s citation to 18 U.S.C. § 1546(a) was sufficient to inform Molina
of the charge.
Molina concedes that he did not raise the objection to the factual basis in the
district court; therefore, our review is for plain error only.3 We hold that 8 C.F.R. §
223.2(a) supports a determination under the plain-error standard of review that the
indictment’s reference to Form I-131 necessarily includes its supporting
documentation.
1
United States v. Guzman-Ocampo, 236 F.3d 233 (5th Cir. 2000), cert. denied, 121 S. Ct.
2600 (2001).
2
168 F.3d 141 (5th Cir. 1999).
3
United States v. Marek, 238 F.3d 310 (5th Cir.) (en banc), cert. denied, 122 S. Ct. 37
(2001).
2
Applying the plain-error standard of review, we also reject Molina’s
argument that the terms “falsely made” and “counterfeited” are interchangeable for
purposes of 18 U.S.C. § 1546(a).4
For these reasons, the judgment appealed is AFFIRMED.
4
See, e.g., Moskal v. United States, 498 U.S. 103 (1990) (rejecting the same argument in
the context of 18 U.S.C. § 2314); see also United States v. Mitchell, 588 F.2d 481 (5th Cir.
1979).
3