United States v. Mosquera-Mina

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 16, 1999
• Docket: 98-40861
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-40861 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUIS MOSQUERA-MINA,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. B-98-CR-191-1 - - - - - - - - - -

June 16, 1999

Before EMILIO M. GARZA, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:*

Luis Mosquera-Mina appeals his guilty-plea conviction for

being an alien previously deported and either attempting to enter

or being present in the United States without the consent of the

Attorney General. He argues for the first time on appeal that

the indictment was constitutionally deficient because it stated

that Mosquera-Mina “attempt,” as opposed to attempted, to reenter

the United States.

Even though the indictment used an incorrect tense of 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 98-40861 -2-

verb attempt, the indictment specified the date of the alleged

offense. The indictment was sufficiently clear, and the

technical error did not render the indictment constitutionally

deficient. See United States v. Newsom, 483 F.2d 439, 440 (5th

Cir. 1974); United States v. Varkonyi, 645 F.2d 453, 456 (5th

Cir. 1981). Furthermore, Mosquera-Mina does not challenge the

indictment’s allegation that he was found in the United States

without the consent of the Attorney General after having been

previously deported, and his conviction may be affirmed based

upon his plea of guilty to that allegation in the indictment.

See United States v. Harvard, 103 F.3d 412, 420 (5th Cir. 1997).

AFFIRMED.