United States v. Beiza-Cruz

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40932
Conference Calendar
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
SANTANA BEIZA-CRUZ, Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-00-CR-299-1
--------------------
April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Santana Beiza-Cruz (Beiza) appeals his conviction and
sentence following a guilty plea to illegal reentry into the
United States following deportation in violation of 8 U.S.C.
§ 1326(a)(1) and (b)(2). Beiza argues he should have been
sentenced to no more than two years of imprisonment because a
prior felony conviction is an element of the offense of reentry
following deportation after a felony conviction. Beiza concedes
that his argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998). Beiza contends, however, that
Apprendi v. New Jersey, 120 S. Ct. 2348, 2362 (2000), casts doubt

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No. 00-40932
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on Almendarez-Torres and that he is raising the argument to
preserve it for Supreme Court review.
Although the Supreme Court noted in Apprendi that, arguably,
Almendarez-Torres was incorrectly decided, the Court expressly
declined to overrule Almendarez-Torres. Apprendi, 120 S. Ct. at
2362-63 & n.15; United States v. Dabeit, 231 F.3d 979, 984 (5th
Cir. 2000), petition for cert. filed, (U.S. Jan. 26, 2001)
(No. 00-8299). This court is compelled to follow the precedent
set in Almendarez-Torres "unless and until the Supreme Court
itself determines to overrule it." Id. (internal quotation and
citation omitted). Such is true even if it seems "pellucidly
clear" that given the opportunity, the Supreme Court would
overrule its precedent. Id. Without the benefit of Apprendi,
Beiza’s claim fails.
Beiza also argues that his indictment was defective under
the Fifth and Sixth Amendments because it did not allege general
intent, or mens rea. Beiza argues that any felony conviction
requires some mens rea and that offenses without a mens rea are
generally disfavored. He contends that strict liability offenses
are exceptional and are limited to offenses likely to cause
public harm. He argues that other circuits have recognized that
§ 1326 has a general-intent element.
In United States v. Guzman-Ocampo, 236 F.3d 233, 238-39 (5th
Cir. 2000), this court declared an indictment substantially the
same as the one against Beiza constitutionally and statutorily
sufficient.
Beiza’s conviction and sentence are AFFIRMED.

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