United States v. J. Felix-Hernandez

Case: 13-50260 Document: 00512622118 Page: 1 Date Filed: 05/07/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-50260 May 7, 2014
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
J. SANTOS FELIX-HERNANDEZ, also known as Jose Santos Felix-
Hernandez,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:13-CR-11-1
Before STEWART, Chief Judge, and JOLLY and SOUTHWICK, Circuit
Judges.
PER CURIAM: *
J. Santos Felix-Hernandez (Felix) was convicted of being an alien found
in the United States without permission after having been previously deported,
in violation of 8 U.S.C. § 1326; he was sentenced to six months in prison and
two years of non-reporting supervised release. On appeal, Felix challenges the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-50260 Document: 00512622118 Page: 2 Date Filed: 05/07/2014
No. 13-50260
district court’s denial of his motion to dismiss his indictment. He contends that
he cannot be “found in” the United States because he had voluntarily presented
himself for immigration inspection when he entered the southbound exit lane
at the port of entry.
“A challenge to an indictment based on the legal sufficiency of
uncontested facts is an issue of law reviewed de novo.” United States v. Flores,
404 F.3d 320, 326 (5th Cir. 2005). To prove Felix’s offense of conviction, the
Government was required to establish four elements: (1) alienage, (2) arrest
and deportation, (3) unlawful presence in the United States, and (4) lack of the
Attorney General’s consent to reenter. United States v. Flores-Peraza, 58 F.3d
164, 166 (5th Cir. 1995).
Felix stipulated to the facts necessary to prove these elements, namely,
that he was a citizen of Mexico, he was previously deported, he was “in the
United States” when he was stopped (encountered) by the immigration officer,
and he did not receive permission to renter the United States. See Flores-
Peraza, 58 F.3d at 166; see United States v. Ramos-Flores, 233 F. App’x 347,
348, 350 (5th Cir. 2007). His reliance upon United States v. Angeles-Mascote,
206 F.3d 529 (5th Cir. 2000), and United States v. Canals-Jimenez, 943 F.2d
1284 (11th Cir. 1991), is misplaced. In those cases, the alien defendants were
attempting to enter the United States through a port of entry. Here, Felix had
already illegally entered the United States without detection and was
attempting to exit the United States through a port of entry.
The district court’s judgment is AFFIRMED.
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