United States v. Mayorga-Mendoza

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20172

Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus ANTONIO MAYORGA-MENDOZA, Defendant-Appellant.

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Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-747-1

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October 29, 2001

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges. PER CURIAM:* Antonio Mayorga-Mendoza (Mayorga) appeals his conviction and the sentence he received after pleading guilty to illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(2). Mayorga argues that the indictment against him violated the Fifth and Sixth Amendments because it lacked an allegation that he acted with the requisite general intent. He acknowledges that his argument is foreclosed by this court’s precedent in United States v. Guzman- Ocampo, 236 F.3d 233, 236 (5th Cir. 2000), cert. denied, 121 S. Ct. 2600 (2001), and United States v. Berrios-Centeno, 250 F.3d

*

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-20172

-2-

294, 296 (5th Cir. 2001), petition for cert. filed, (Jul. 24, 2001)(No. 01-5535), but wishes to preserve the issue for review by the Supreme Court.

Because Mayorga failed to challenge the sufficiency of the indictment at trial or that he was prejudiced from the alleged deficiency in the indictment, this court reviews the sufficiency of the indictment under the standard of "maximum liberality." Guzman-Ocampo, 236 F.3d at 236 & n.1. Under this standard, the indictment is sufficient if under any reasonable construction it charges the offense for which the defendant stood convicted. In Berrios-Centeno, 250 F.3d at 296, the court examined language identical to the language in the indictment against Mayorga and held that it sufficiently alleged a general intent to reenter. Accordingly, Mayorga’s conviction and sentence are AFFIRMED.