United States v. Magana-Frias

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 16, 2001
• Docket: 99-21106
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-21106 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARIO MAGANA-FRIAS,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CR-514-1 - - - - - - - - - - February 14, 2001

Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Mario Magana-Frias appeals from his guilty plea conviction

and sentence for illegal reentry by a previously deported alien

in violation of 8 U.S.C. § 1326(b). First, Magana-Frias argues

that the indictment failed to allege that he had committed any

act in violation of 8 U.S.C. § 1326 because the indictment had

passively alleged only that he had been found in the United

States without permission. This argument is foreclosed by the

court’s recent decision in United States v. Tovias-Marroquin, 218

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-21106 -2-

F.3d 455, 456-57 (5th Cir. 2000), cert. denied, 121 S. Ct. 670

(2000).

Next, Magana-Frias argues that the indictment was

insufficient because it failed to allege any specific intent

element. He concedes, however, that this argument is foreclosed

by United States v. Ortegon-Uvalde, 179 F.3d 956, 959 (5th Cir.),

cert. denied, 528 U.S. 979 (1999), and he raises the issue only

to preserve it for possible Supreme Court review.

Finally, Magana-Frias argues that the indictment was

insufficient because it failed to allege any mens rea. This

court’s recent decision in United States v. Guzman-Ocampo, 236

F.3d 233 (5th Cir. 2000), is dispositive. The indictment alleged

every statutorily required element of 8 U.S.C. § 1326 and fairly

imported that Magana-Frias’s reentry was a voluntary act in view

of the allegations that he had been deported and removed, and

that he was present without having obtained the consent of the

Attorney General. Magana-Frias failed to challenge the element

of voluntariness. Consequently, under Guzman-Ocampo, the

indictment was statutorily sufficient.

Accordingly, the judgment of conviction is AFFIRMED.