United States v. Montes-Lira

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 23, 2001
• Docket: 00-20454
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20454 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS MONTES-LIRA, also known as Jesus Lira, also known as Jesus L. Lira, also known as Jesus L. Montes, also known as Gerardo Servantes, also known as Chui, also known as Gerardo Cervantes,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CR-529-ALL -------------------- August 23, 2001

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

PER CURIAM:*

Jesus Montes-Lira (Montes) appeals his conviction and

sentence after pleading guilty to a charge of being found present

in the United States after deportation, a violation of 8 U.S.C.

§ 1326. Montes first challenges a sixteen-level increase to his

base offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A).

Specifically, he argues that his prior Texas conviction for

possession of less than one gram of cocaine does not qualify as

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-20454 -2-

an “aggravated felony” for purposes of § 2L1.2. Montes’

argument, however, is foreclosed by our decision in United States

v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997). Montes

maintains that this issue is not foreclosed by Hinojosa-Lopez

because he raises it as a rule-of-lenity argument. “The rule of

lenity . . . applies only when, after consulting traditional

canons of statutory construction, [a court is] left with an

ambiguous statute.” United States v. Shabani, 513 U.S. 10, 17

(1994)(emphasis added). It follows from the interpretation

reached by this court in Hinojosa-Lopez that the term “aggravated

felony” is not so ambiguous as to require an application of the

rule of lenity. See Hinojosa-Lopez, 130 F.3d at 693-94.

Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000),

Montes next argues that the aggravated-felony conviction used to

enhance his sentence was an element of the offense that should

have been alleged in the indictment. As Montes acknowledges,

however, his argument remains foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224 (1998). See United States v. Dabeit,

231 F.3d 979, 984 (5th Cir. 2000)(stating that Apprendi did not

overrule Almendarez-Torres), cert. denied, 121 S. Ct. 1214

(2001).

Finally, Montes argues that his indictment does not charge

an offense because it fails to allege any general intent on his

part. Montes’ indictment, however, “fairly conveyed that [his]

presence was a voluntary act from the allegations that he was

deported, removed, and subsequently present without consent of

the Attorney General.” See United States v. Berrios-Centeno, No. 00-20454 -3-

250 F.3d 294, 299-300 (5th Cir. 2001). Accordingly, his

indictment sufficiently alleged the general intent required of 8

U.S.C. § 1326 offenses. See id. at 298-300.

AFFIRMED.