United States v. Guzman-Ocampo

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-20968
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ARMANDO GUZMAN-OCAMPO,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
December 21, 2000
Before JOLLY, JONES, and SMITH,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Challenging the sufficiency of his
indictment, Armando Guzman-Ocampo (“Guz-
man”) appeals his conviction of illegally re-
siding in the United States after deportation, in
violation of 8 U.S.C. § 1326. Finding no
reversible error, we affirm.
I.
Guzman, a Mexican citizen by birth who
was in the United States without inspection,
was served with notice and a final
administrative removal order that found that
he was neither a citizen of the United States
nor had been admitted for permanent
residence; that he had been convicted of an
aggravated felony (delivery of a controlled
substance); and that the administrative record
demonstrated by clear and convincing evidence
that he was deportable as an alien convicted of
an aggravated felony. A f t e r b e i n g

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2
advised of his rights, as contained in the
notice, Guzman signed a waiver and requested
deportation to Mexico.
A warrant of removal/deportation was
issued, and Guzman was deported; on the
same day, he was served with a warning ad-
vising that he was prohibited from entering or
attempting to enter the United States at any
time, because he had been ordered deported as
an alien convicted of an aggravated felony.
Several months later, he illegally reentered,
not having applied to the Attorney General for
permission to do so after deportation.
II.
Guzman was charged with being illegally in
the United States after deportation, in vio-
lation of § 1326, which creates criminal
penalties for aliens who have been deported or
removed and are later found in the United
States without the Attorney General’s consent.
Guzman filed a motion to suppress evidence of
his deportation and to dismiss the indictment
on the ground that his deportation was illegal
and could not form the basis for a prosecution
under § 1326. After the court denied the
motion, Guzman waived his right to a jury and
proceeded to a bench trial on stipulated facts,
whereupon the court found him guilty.
III.
Guzman challenges the indictment on the
ground that it failed to allege actus reus, spe-
cific intent, or general intent. He also
contends that the court erred in not
suppressing evidence of his deportation on the
ground that its procedures violated due
process. Our precedent specifically forecloses
all but one of these challenges. We decide the
remaining question in agreement with five
other circuits who have considered it and in
disagreement with one circuit.
IV.
Under the Sixth Amendment, an indictment
must “(1) enumerate each prima facie element
of the charged offense; (2) fairly inform the
defendant of the charges filed against him; and
(3) provide the defendant with a double
jeopardy defense against future prosecutions.”
United States v. Gaytan, 74 F.3d 545, 551
(5th Cir. 1996). These requirements provide
the defendant with notice of the crime, id. at
552, and ensure that the grand jury has found
probable cause that the defendant committed
each element of the offense, United States v.
Cabera-Teran, 168 F.3d 141, 143 (5th Cir.
1999). In sum, “[t]o be sufficient, an
indictment must allege each material element
of the offense; if it does not, it fails to charge
that offense.” Id.
Because the sufficiency of an indictment is
jurisdictional, a defendant may, at any time,
contest an indictment for failing to charge an
offense. See id. The timing of the challenge
does alter the standard of review, however.
We generally review the sufficiency of an in-
dictment de novo and will not reverse for
“minor deficiencies that cause no prejudice.”
Gaytan, 74 F.3d at 551. Guzman, however,
did not challenge the sufficiency of the
indictment in the district court, so sufficiency
is subject to the standard of “maximum
liberality.”1
A.
1 United States v. Lankford, 196 F.3d 563, 569
(5th Cir. 1999) (quoting United States v.
Fitzgerald, 89 F.3d 218, 221 (5th Cir. 1996), and
stating that an indictment is sufficient unless “it is
so defective that by any reasonable construction, it
fails to charge the offense for which the defendant
is convicted.”), cert. denied, 120 S. Ct. 1984
(2000).

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3
Guzman argues that if § 1326 proscribes
mere presence in the United States, it is an un-
constitutional status offense. If, on the other
hand, the statute requires the defendant to re-
enter the country illegally, the indictment is
deficient because it alleges only a passive con-
dition. In United States v. Tovias-Marroquin,
218 F.3d 455 (5th Cir. 2000), however, we
rejected the argument that an indictment under
§ 1326 was deficient because it alleged only a
passive status offense.
B.
We also have rejected the claim that an in-
dictment is fundamentally defective because it
fails to allege a specific intent to violate
§ 1326.2 This challenge has been rejected by
all circuits that have considered this question,
save one.3
C.
Guzman contends that the indictment was
deficient because it did not allege a general
intent to reenter. Although the statute’s plain
language does not include a mens rea
requirement for this element,4 other courts
have found a general intent requirement.5
A general intent mens rea under § 1326,
then, merely requires that a defendant reenter
the country voluntarily. This general intent re-
quirement serves the limited purpose of pre-
venting one from being liable under § 1326 if
he crossed the border involuntarily.6
2 United States v. Ortegon-Uvalde, 179 F.3d
956, 959 (5th Cir. 1999) (finding no specific intent
requirement in § 1326), cert. denied, 120 S. Ct.
433 (2000); United States v. Trevino-Martinez, 86
F.3d 65, 68 (5th Cir. 1996) (finding no specific
intent requirement, but not reaching question
whether § 1326 is a general intent or strict liability
statute).
3 See United States v. Gonzalez-Chavez, 122
F.3d 15, 17-18 (8th Cir. 1997); United States v.
Henry, 111 F.3d 111, 114 (11th Cir. 1997);
United States v. Soto, 106 F.3d 1040, 1041 (1st
Cir. 1997); United States v. Ayala, 35 F.3d 423,
426 (9th Cir. 1994); United States v. Espinoza-
Leon, 873 F.2d 743, 746 (4th Cir. 1989); United
States v. Hernandez, 693 F.2d 996, 1000 (10th
Cir. 1982); United States v. Newton, 677 F.2d 16,
17 (2d Cir. 1982); United States v. Hussein, 675
F.2d 114, 116 (6th Cir. 1982). Contra United
States v. Anton, 683 F.2d 1011 (7th Cir. 1982).
4 Pursuant to the text of § 1326, the government
is required to allege only (1) that the defendant was
an alien, (2) that he was “deported” as that term is
contemplated by the statute, (3) that he
subsequently was found within the United States;
and (4) that he did not have the consent of the
Attorney General to reapply for admission.
5 See United States v. Salazar-Robles, 207 F.3d
648, 650 (9th Cir.) (opining that a violation of
§ 1326 requires the general intent to reenter), cert.
denied, 121 S. Ct. 145 (2000); United States v.
Martus, 138 F.3d 95, 97 (2d Cir. 1998) (holding
that government must prove voluntary act of re-
entry); United States v. Peralt-Reyes, 131 F.3d
956, 957 (11th Cir. 1997) (finding no error in in-
structing jury with a general intent requirement);
United States v. Martinez-Moral, 118 F.3d 710,
713 (10th Cir. 1997) (holding that the only intent
the government must prove is the intent to enter the
country); Espinoza-Leon, 873 F.2d at 745 (holding
that § 1326 requires only proof of a voluntary act
by defendant). Contra Anton (holding that § 1326
requires showing of something more than general
intent).
6 Because the illegal conduct occurs when the
defendant reenters, not when he is found, he does
not even have to be in the country voluntarily when
he is located. Such circumstances can arise when
the defendant was “found” in prison after being
(continued...)

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4
Even while recognizing § 1326 as a general
intent crime, circuits have differed as to its im-
plications for the indictment. The Ninth Circuit
allows the jury to infer intent and the
defendant to rebut the inference by showing
involuntariness.7
That court revisited the issue in United
States v. Quintana-Torres, 224 F.3d 1157 (9th
Cir. 2000), in which the narrow issue was
whether the government had introduced
evidence that the defendant had entered the
United States voluntarilySSnot whether the
indictment had alleged a mens rea. The case
remains useful in understanding mechanics of
the general intent requirement in Ninth Circuit
jurisprudence. The court noted that the
government must prove voluntary entry
beyond a reasonable doubt; otherwise, a de-
fendant could be convicted, for example, for
sleeping on a train that unexpectedly enters the
United States. Id. at 1159.
Recognizing the unlikelihood of involuntary
entry when an alien is found in the country at
a location other than the border,8 the court
held that a “reasonable juro r may well infer
that the alien had the intention to be here.” Id.
The court characterized this type of proof not
as a presumption of law, but as circumstantial
proof that is convincing unless the defendant
explains it away.
The nature of this crime is such that
circumstantial evidence will most often be the
only evidence available to demonstrate that the
defendant was voluntarily in the country.
Distance from the border, in most cases, will
be sufficient evidence to allow the jury to draw
the inference that presence was voluntary. A
defendant would then be able to exonerate
herself by offering evidence that she was in the
country “against her will.”9 Quintana offered
no such evidence, so his conviction was
affirmed.
The Tenth Circuit has noted that the
government must prove that the entry was
voluntary, but the court did not include that
factor as one of the elements of a violation of
§ 1326.10 Other circuits include voluntary re
6(...continued)
incarcerated for a different crime. United States v.
Asibor, 109 F.3d 1023, 1031-32 (5th Cir. 1997)
(stating that being in the country illegally is a
continuous offense); Salazar-Robles, 207 F.3d at
649 (opining that the argument that defendant did
not voluntarily put himself in prison does not mean
that he did not violate § 1326 because his presence
was not voluntary).
7 Pena-Cabanillas v. United States, 394 F.2d
785, 788 n.2 (9th Cir. 1968) (noting that defendant
may defend against general intent on ground that he
did not commit a voluntary act).
8 Quintana was found in San Diego, California,
(continued...)
8(...continued)
after having been deported and ordered not to
reenter.
9 This should not be construed as allowing the
government to shift the burden of proof regarding
voluntary presence in the country to the defendant.
To do so would violate In re Winship, 397 U.S.
358 (1970) (“the Due Process Clause protects the
accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary
to constitute the crime with which he is charged.”).
10 See United States v. Martinez-Morel, 118
F.3d 710, 716 (10th Cir. 1997) (noting that the
only mens rea required under § 1326 is intent to
enter the country); United States v. Hernandez,
(continued...)

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5
entry as one of the elements but note that vol-
untariness generally is not contested and that
involuntary reentry is unlikely.11
In Tovias-Marroquin, 218 F.3d at 457-58,
we suggested that there is a general intent re-
quirement in § 1326. Although the jury in-
struction did not include the requirement that
the defendant “‘knowingly’ re-entered the
country,” we reasoned that the jury was
informed of the mens rea requirement favored
by the defendant, because he and the govern-
ment had told the jury that it must find that he
was “knowingly in the United States.” Id.
Adopting the suggestion in Tovias-Marro-
quin, we now join the majority of jurisdictions
that have addressed this issue in deciding that
§ 1326 is a general intent offense. According-
ly, the government must show that the defen-
dant had the general intent to reenter.12
The indictment alleged every statutorily re-
quired element of § 1326.13 Guzman had no-
tice of the charge filed against him. The in-
dictment also fairly imported that his reentry
was a voluntary act in view of the allegations
that he had been excluded, deported, and re-
moved and that he was present without having
obtained the consent of the Attorney General.
In other words, the facts created a strong
inference of voluntariness, just as in Quintana-
Torres. Guzman was free to challenge the
voluntariness of his entry, which he did not do.
Therefore, Guzman’s indictment is statutorily
sufficient.
D.
We need not pause long on Guzman’s final
claimSSthat the expedited administrative de-
portation procedure under 8 U.S.C. § 1228
violates due process, and therefore all evidence
of prior deportation should be suppressedSSfor
Guzman concedes it is raised merely to
preserve Supreme Court review. Guzman
10(...continued)
693 F.2d 996, 1000 (10th Cir. 1992) (identifying
the elements of a § 1326 violation as “(1) an alien
(2) who has been arrested, and (3) deported, and
(4) thereafter is found in the United States,
(5) without the Attorney General’s consent for
readmission.”).
11 Espinoza-Leon, 873 F.2d at 746 (noting that
it was undisputed that defendant had entered vol-
untarily); Diaz v. Duckworth, 143 F.3d 345, 347
(7th Cir. 1998) (remarking that the possibility of
violating § 1326 involuntarily and still being pun-
ished is “minute” and that although the defendant
could be kidnaped and brought to the United
States, the possibility was “far too remote”).
12 Although we decide only that this indictment
was sufficient under the “maximum liberality”
standard, we note that a district court has found a
similar indictment sufficient when challenged in the
district court. See United States v. Hernandez-
(continued...)
12(...continued)
Landaverde, 65 F.Supp. 2d 567 (S.D. Tex. 1999)
(reasoning that general intent may be inferred from
the fact that a defendant was previously “de-
ported,” as that term is contemplated in the statute,
and subsequently was “found in” the United
States.)
13 The indictment charged:
On or about March 10, 1999, in the
Southern District of Texas, Armando
Guzman-Ocampo, . . . an alien previously
excluded, deported, and removed from the
United States, was found present in the
United States, at Houston, Texas, without
having obtained consent from the Attorney
General of the United States to reapply for
admission into the United States.

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argues that having an administrative officer, as
opposed to an immigration judge, prepare and
execute the charge denies the alien (1) notice,
(2) the opportunity to be heard, and (3) review
by an impartial judge. This argument is
foreclosed by United States v. Benitez-
Villafuerte, 186 F.3d 651, 657 (5th Cir. 1999),
cert. denied, 120 S. Ct. 838 (2000), in which
we determined that “the administrative
deportation procedures of § 1228 afforded
Benitez the unimpeded opportunity to claim all
the procedural due process to which he was
constitutionally entitled.”
In Benitez-Villafuerte, id. at 659, we also
found that to attack collaterally a deportation
proceeding under § 1326, the alien must show
that the procedural defects caused actual pre-
judice, which requires a showing of a reason-
able likelihood that, without the procedural er-
rors, he would not have been deported. Guz-
man’s argument that his prior deportation
should have been suppressed fails under these
standards. He was in the country without in-
spection and without being admitted for
permanent residency, and he was convicted of
an aggravated felony. Those undisputed facts
are sufficient for deportation under § 1227(a)-
(2)(A)(iii).
Although Guzman argues that his claim of
bias is a “structural argument” and therefore
not subject to the actual prejudice standard,
the court in Benitez-Villafuerte, 186 F.3d at
659-60, considered and rejected an identical
claim of bias. Thus, this issue, also, is
foreclosed by our precedent.
AFFIRMED.

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