United States v. Tovias Marroquin

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m. 99-40881
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JESUS TOVIAS-MARROQUIN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
_________________________
July 11, 2000
Before SMITH, BARKSDALE, and
PARKER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Jesus Tovias-Marroquin (“Tovias”) was
convicted of illegal entry after deportation in
violation of 8 U.S.C. § 1326(a) and (b). He
claims that the crime of which he was con-
victed cannot stand under the Due Process
Clause of the Fourteenth Amendment because
it constitutes, as defined in the indictment and
the district court’s jury instructions, a “status
offense.” He also argues that the court erred
in imposing a fine. Finding no error, we
affirm.
I.
Tovias was convicted of possession with
intent to distribute marihuana, then jailed and
later deported. In 1999, he reentered the Unit-
ed States without the requisite permission to
do so, and was again arrested.
Tovias was indicted under a statute
providing that

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(a) . . . any alien whoSS
(1) has been denied admission,
excluded, deported, or removed or has
departed the United States while an or-
der of exclusion, deportation, or remov-
al is outstanding, and thereafter
(2) enters, attempts to enter, or is at
any time found in, the United States, un-
less (A) prior to his reembarkation at a
place outside the United States or his
application for admission from foreign
contiguous territory, the Attorney
General has expressly consented to such
alien’s reapplying for admission; or
(B) with respect to an alien previously
denied admission and removed, unless
such alien shall establish that he was not
required to obtain such advance consent
under this chapter or any prior Act,
shall be fined under Title 18, or imprisoned
not more than 2 years, or both.
(b) Criminal penalties for reentry of
certain removed aliens
Notwithstanding subsection (a) of this
section, in the case of any alien de-
scribed in such subsectionSS
(1) whose removal was subsequent to
a conviction for commission of three or
more misdemeanors involving drugs,
crimes against the person, or both, or a
felony (other than an aggravated felony),
such alien shall be fined under Title 18,
imprisoned not more than 10 years, or
both;
(2) whose removal was subsequent to
a conviction for commission of an
aggravated felony, such alien shall be
fined under such Title, imprisoned not
more than 20 years, or both. . . .
8 U.S.C. § 1326. The indictment charged that
Tovias, “an alien who had previously been
denied admission, excluded, deported, and
removed, knowingly and unlawfully was
present in the United States[,] . . . the said
defendant having not obtained . . . consent . .
. for admission into the United States.”
II.
A.
Tovias challenges his conviction on the
ground that § 1326 establishes a “status
offense”SSthat it would punish him for who he
is rather than what he has done, and that it
therefore violates his due process rights.
Although we have not dealt specifically with
this argument, the court in United States v.
Ayala, 35 F.3d 423, 425-26 (9th Cir. 1994),
did so, reasoning as follows:
Ayala argues that the “found in” provision
of § 1326 impermissibly punishes aliens for
their “status” of being found in the United
States. We reject the argument.
Ayala’s reliance on two Supreme Court
decisions, Robinson v. California, 370 U.S.
660 (1962) and Lambert v. California, 355
U.S. 225 (1957), is misplaced. In
Robinson, the Court held that a statute that
criminalized the status of being addicted to
narcotics, “even though [the defendant] . . .
never touched any narcotic drug within the
State or [had] been guilty of any irregular
behavior there,” violated the Eighth
Amendment. 370 U.S. at 667. The Su-
preme Court has subsequently limited the
applicability of Robinson to crimes that do

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not involve an actus reus:
The entire thrust of Robinson’s
interpretation of the [Eighth
Amendment] is that criminal penalties
may be inflicted only if the accused has
committed some act, has engaged in
some behavior, which society has an
interest in preventing, or perhaps in
historical common law terms, has
committed some actus reus.
Powell v. Texas, 392 U.S. 514, 533 (1968)
(plurality opinion of Marshall, J.)
(upholding statute criminalizing being
drunk while in public); see also id. at 544
(Black, J., concurring). A conviction under
§ 1326 for being “found in” the United
States necessarily requires that a defendant
commit an act: he must re-enter the United
States without permission within five years
after being deported.
Lambert involved a municipal ordinance
that made it a criminal offense for a person
having a previous felony conviction to be
present in Los Angeles without registering
with police. 355 U.S. at 227. The Court
held that due process required “actual
knowledge of the duty to register or proof
of the probability of such knowledge and
subsequent failure to comply.” Id. at 229.
Ayala’s reliance on Lambert is misplaced
because it is undisputed that Ayala knew it
was illegal to re-enter the United States
after his deportation.
Id. (ellipses in original, some internal citation
information omitted).
Tovias’s argument s are materially
similarSSaimed at the sufficiency of the
indictment rather than the constitutionality of
the statute, but otherwise the sameSSand fail
for the same reasons. We adopt the analysis
set forth in Ayala and find no merit to Tovias’s
claim that he was charged with a status
offense.
B.
In a related matter, Tovias argues that the
district court abused its discretion in failing to
charge the jury that, to convict, it must find
that he had “knowingly” re-entered the
country. See United States v. Trevino-
Martinez, 86 F.3d 65, 67 (5th Cir. 1996)
(holding that we review the refusal to provide
a requested jury instruction for abuse of
discretion).
The district court abuses its discretion
when it declines a proffered instruction only
if this instruction (1) was a correct
statement of the law, (2) was not
substantially covered in the charge as a
whole, and (3) concerned an important
point in the trial such that the failure to
instruct the jury on the issue seriously
impaired the defendant’s ability to present
a given defense.
Id. at 67-68. Moreover, “[w]e review claimed
deficiencies in a jury charge by looking to the
entire charge as well as the arguments made to
the jury.” United States v. Chagra, 807 F.2d
398, 402 (5th Cir. 1986).
The government and Tovias informed the
jury that, to convict, it must find that Tovias
was knowingly in the United States; the jury,
while deliberating, had a copy of the
indictment, which explicated the same mens
rea. The jury was, therefore, competently in-
structed of the mens rea requirement Tovias
desired.

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II.
Tovias asserts that the court committed clear
error in fining him, although he concedes that
the $10,000 fine was within the sentencing-
guideline range. Imposition of a fine is
appropriate unless the defendant establishes
that he will be unable to pay. See United
States v. Fair, 979 F.2d 1037, 1040 (5th Cir.
1992). The defendant has the burden of
presenting evidence of inability to pay. Id. at
1041; United States v. Leal, 74 F.3d 600, 608
(5th Cir. 1996).
Tovias refused to sign a personal financial
statement, a consent and authorization for ac-
cess to financial records, or forms swearing
that he lacked assets and had no appreciable
net worth. He therefore willfully refused to
carry his burden, and failed thereby to deny the
court the opportunity to levy a fine.
AFFIRMED.

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