United States v. Guzman-Jimenez

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 23, 2001
• Docket: 00-20237
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20237 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROGELIO GUZMAN-JIMENEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CR-568-1 -------------------- August 21, 2001

Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.

PER CURIAM:*

Rogelio Guzman-Jimenez (“Guzman”) appeals his conviction and

the 96-month sentence imposed following his plea of guilty to a

charge of being found in the United States after deportation, a

violation of 8 U.S.C. § 1326. Guzman contends that the felony

conviction that resulted in his increased sentence under 8 U.S.C.

§ 1326(b)(2) was an element of the offense that should have been

charged in the indictment. Guzman acknowledges that his argument

is foreclosed by the Supreme Court’s decision in Almendarez-

Torres v. United States, 523 U.S. 224, 226-27 (1998), but he

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-20237 -2-

seeks to preserve the issue for Supreme Court review in light of

the decision in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

Apprendi did not overrule Almendarez-Torres. See Apprendi, 530

U.S. at 489-90, 496; United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001). Guzman’s

argument is foreclosed.

Guzman next challenges his indictment because it did not

allege general intent as an element of the offense. We review

Guzman’s indictment under a de novo standard of review. See

United States v. Berrios-Centeno, 250 F.3d 294, 296 (5th Cir.

2001). Section 1326, 18 U.S.C., is a general intent offense.

United States v. Guzman-Ocampo, 236 F.3d 233, 238-39 (5th Cir.

2000), cert. denied, 121 S. Ct. 2600 (2001). General intent to

re-enter the United States “may be inferred by the fact that a

defendant was previously deported and subsequently found in the

United States without consent.” Berrios-Centeno, 250 F.3d at 299

(citations, internal quotations, footnotes, and ellipsis

omitted).

Guzman’s indictment sufficiently alleged the general intent

mens rea required of 18 U.S.C. § 1326 offenses because the

indictment alleged that he was deported, removed, and

subsequently present without consent of the Attorney General.

See Berrios-Centeno, 250 F.3d at 299-300. The judgment of the

district court is AFFIRMED.