United States v. Ramos-Flores

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 23, 2001
• Docket: 99-21143
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-21143 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ELIAZAR RAMOS-FLORES, also known as Eleazar Ramos-Flores,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CR-440-1 - - - - - - - - - - August 22, 2001

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

PER CURIAM:*

Eliazar Ramos-Flores appeals his guilty-plea conviction and

sentence for illegal reentry into the United States by a

previously deported alien in violation of 8 U.S.C. § 1326(a),

(b)(2). First, Ramos argues that his indictment was insufficient

because it failed to allege an actus rea and instead accused him

of only the status of being a previously deported alien present

in the United States. This argument is foreclosed by the court’s

recent decision in United States v. Tovias-Marroquin, 218 F.3d

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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-21143 -2-

Next, Ramos argues that his indictment was insufficient

because it failed to allege a specific intent element. He

concedes, however, that this argument is foreclosed by United

States v. Trevino-Martinez, 86 F.3d 65, 68-69 (5th Cir. 1996),

and he raises the issue to preserve it for possible Supreme Court

review.

Finally, Ramos argues that his indictment was insufficient

because it failed to allege general intent or any mens rea. This

court’s recent decision in United States v. Berrios-Centeno, 250

F.3d 294 (5th Cir. 2001), is dispositive. Ramos’ indictment

sufficiently alleged the general intent required for an 8 U.S.C.

§ 1326 offense, as it fairly conveyed that Ramos’ presence in the

United States was a voluntary act by alleging that he had been

deported and removed from the United States, but was subsequently

found present in the United States without the Attorney General’s

consent. See Berrios-Centeno, 250 F.3d at 298-300.

The district court’s judgment is AFFIRMED.