United States v. Penado-Ramos

*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this opinion should not be published and is not precedent except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
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No. 99-20794
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSÉ ATADEO PENADO-RAMOS, also
known as José Atadeo Ramirez-Penado,
also known as José Atadeo Penado,
also known as José Attado Ramox,
also known as José Attado Ramos, also
known as José A. Ramos, also known as
José Ramos, also known as José Ataded
Penado, also known as José Aladeo
Penado-Ramos, also known as José Atadeo,
also known as José Avadeo Penado-Ramos,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Texas
USDC No. H-99-CR-201-ALL
_________________________________________________________________
June 1, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
José Atadeo Penado-Ramos appeals his conviction for illegal
reentry pursuant to 8 U.S.C. § 1326(a), (b)(2). He argues that:
(1) the indictment was insufficient for failing to allege an

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element of intent; (2) the evidence was insufficient to support the
jury’s verdict because the evidence indicated that he reasonably
believed that his reentry was lawful and because he established a
defense of entrapment by estoppel; and (3) specific intent is a
material element of an offense under § 1326. He concedes that his
specific intent argument is foreclosed by this court’s holding in
United States v. Trevino-Martinez, 86 F.3d 65, 69 (5th Cir. 1996).
This court reviews a challenge to the sufficiency of the
indictment de novo. See United States v. Cabrera-Teran, 168 F.3d
141, 143 (5th Cir. 1999). An indictment must allege each material
element of the offense in order to be sufficient. See id. Because
intent is not a material element of a violation of § 1326, Penado-
Ramos’s challenge fails. See id. at 143-44, 144 n.7.
This court also reviews a challenge to the sufficiency of the
evidence de novo. See United States v. Medina, 161 F.3d 867, 872
(5th Cir. 1998), cert. denied, 119 S.Ct. 1344 (1999). Penado-
Ramos’s argument that he reasonably believed that his reentry was
lawful does not affect the sufficiency of the evidence supporting
his guilty verdict because such a belief is not a defense to
criminal liability under § 1326. See United States v. Asibor, 109
F.3d 1023, 1036 (5th Cir. 1997); Trevino-Martinez, 86 F.3d at 68.
Furthermore, a defense of entrapment by estoppel is not available
to Penado-Ramos because there was no evidence, nor has he alleged,

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that he was induced to rely on an affirmative misrepresentation of
the law by a government official. See Trevino-Martinez, 86 F.3d at
69.
Accordingly, the district court’s judgment is
A F F I R M E D.

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