1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-40842

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

RUBEN RAMIREZ-GAMEZ,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

March 25, 1999

Before DAVIS, DUHÉ, and PARKER, Circuit Judges.

PER CURIAM:

Appellant Ruben Ramirez-Gamez (“Ramirez”) appeals his

conviction after trial by jury for being a previously deported

alien present in the United States in violation of 8 U.S.C. § 1326.

Specifically, he challenges his indictment for failure to allege an

essential element of the offense. We affirm his conviction.

I. Background and Procedural History1 Ramirez does not challenge his convictions of being a felon in

possession of a firearm or being an illegal alien in possession of

a firearm.

2 On March 24, 1997, a McAllen, Texas, police offic er stopped

Ramirez for a traffic violation. As Ramirez exited his vehicle,

the officer noticed that a handgun was tucked into the rear

waistband of Ramirez’s pants. When Ramirez did not comply with the

officer’s instructions, he was wrestled to the ground, the weapon

was seized from him, and he was arr ested and transported to the

McAllen police station. On April 15, 1997, an Immigration and

Naturalization Service (“INS”) agent visited Ramirez in prison and

determined that he was an undocumented alien who was in the United

States illegally and who had been arrested and deported from the

United States on at least three prior occasions. It was also

ascertained that Ramirez had not obtained permission to reenter the

country.

On June 3, 1997, Ramirez was charged by a three-count

indictment with: 1) ill egal reentry into the country without

consent of the Attorney General after having been deported, in

violation of 8 U.S.C. § 1326, 2) being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1), and 3) being an

illegal alien in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(5). 1 Specifically, count one charged that:

On or about March 24, 1997, in the Southern District of

Texas and elsewhere within the jurisdiction of the Court,

defendant RUBIN RAMIREZ-GAMEZ an alien who had previously

been deported, knowingly and unlawfully was present in3

the United States having been fou nd in McAllen, Texas,

said defendant not having obtained the consent of the

Attorney General of the United States for re-application

by the defendant for admission into the United States.

In violation of Title 8, United States Code, Se ctions

1326(a) and 1326(b).

The case was tried to a jury, which ultimately found him guilty on

all three counts. On June 11, 1998, the district court sentenced

Ramirez to serve 108 months in the custody of the Bureau of

Prisons, and it imposed a three-year term of supervised release and

a $100 special assessment.

II. Discussion

Ramirez’s sole argument on appeal is that count one of the

indictment was fundamentally defective. He contends that, because

th e indictment did not allege that he had been arrested prior to

his deportation, the indictment did not allege all of the elements

of an illegal-reentry offense. The question we now face is whether

the indictment’s deficiency, i f any, requires us to vacate

Ramirez’s conviction.

Congress amended 8 U.S.C. § 1326 effective April 1, 1997. The

applicable language of the predecessor statute included the phrase

“arrested and deported”, or “has been excluded and deported”. The

1997 amended language deleted the reference to “arrested” and

“excluded” and now only requires that th e alien was “deported”.

The parties disagree about which version of the statute should

apply to Ramirez. Ramirez contends that because he was arrested on

March 24, 1997, and because the indictment states that the offense4

was committed “on or about March 24, 1997,” the indictment must

c omply with the pre-April 1, 1997 version of the statute. The

Government contends that Ramirez’s “offense continued until he was

found by the INS authorities on April 15, 1997,” and therefore,

that April 15 should be the date used to determining which version

of the statute controls. Alternatively, the Government argues that

the indictment’s allegation that the offense under § 13 26 was

committed “unlawfully” and the indictment’s citation to the statute

rendered the allegations constitutionally sufficient, even under

the pre-April 1, 1997 version of the statute.

We first note tha t this court recently considered the same

challenge to an indictment as raised by Ramirez in United States v.

Cabrera-Teran

, No. 97-41532, 1999 WL 74199 (5th Cir. Feb. 15,

1999). In Cabrera , the indictment charged that:

Joel Cabr era-Teran, an alien who had previously been

deported, thereafter entered the United States of America

having not obtained the consent of the Attorney General

of the United States for re-application by the defendant

for admission into the United States.

Id. at *1. There, too, the indictment failed to allege that the

defendant had been arrested prior to his deportation. The C abrera

panel did not, and nor do we, focus on other traditional purposes

of an indictment such as providing the defendant with notice of the

offense charged or providing a double jeopa rdy defense against

future prosecutions. S ee generally United States v. Gayton , 74

F.3d 545, 552 (5th Cir.1996). In both Cabrera and in the present5

case, those purposes were satisfied. In vacating Cabrera’s

conviction, the panel held that to ensure that a gra nd jury has

considered and found evidence to support each element of a charged

offense, each of those elem ents must appear on the face of the

indictment. S ee id. at *5. Noting that nothing in the indictment

could be liberally construed to include the “arrest” element,

Cabrera’s conviction was vacated. See id.

Having noted Cabrera-Teran

, we now turn to R amirez’s

indictment. Ramirez challenged count one of the indictment for the

first time on appeal. We acknowledge that an indictment’s failure

to charge an offense is a jurisdictional question that may be

raised at any time. S ee F ED

. R. C RIM

. P. 12(b)(2); United States v.

Fitzgerald

, 89 F .3d 218, 221 & n.1 (5th Cir.1996). Whether an

indictment sufficiently alleges the elements of an offense is a

question of law which this court reviews d e novo

. S ee United

States v. Shelton

, 937 F.2d 140, 142 (5th Cir.1991). However, when

a defendant had notice of the defective-indictment issue but does

not raise his challenge until appeal, this court reviews the

indictment with “maximum liberality.” See Fitzgerald , 89 F.3d at

221 & n.1; Cabrera-Teran

, 1999 WL 71499 at *1. Under such review,

an indictment is considered sufficient “unless it is so defective

that by any reasonable construction, it fails to charge the offense

for which the defendant is convicted.” F itzgerald

, 89 F.3d at 221.

“The test involves minimal constitutional standards, not whether a6

better indictment could have been written.” S ee McKay v. Collins

,

12 F.3d 66, 69 (5th Cir.1994).

In United States v. Campos-Asencio , 822 F.2d 506 (5th

Cir.1987), we noted that “[a] statutory citation cannot, by itself,

substitute for setting forth the elements of the crime, but a

citation may reinforce other references within the indictment.”

Id. at 507. In that case, the defendant was convicted of illegal

reentry on an indictment that failed to make explicit reference to

the absence of the Attorney General’s consent to reentry. We held

that the indictment, construed liberally (as we must do when it is

challenged for the first time on appeal) sufficiently included the

“no-consent” element by alleging that Campos was in the United

States “unlawfully” and referencing the statute. S ee id. ; CabreraTeran , 1999 WL 74199 at *3.

Likewise, in this case the indictment alleges that Ramirez was

present “unlawfully” in the United States and made reference to the

statute violated. Therefore, without deciding which version of 8

U.S.C. § 1326 Ramirez was indicted under, we hold that the

indictment was su fficient. Under the pre-April 1, 1997 version,

the indictment passes muster under Fitzgerald and Campos-Asencio

.

See 89 F.3d at 221; 822 F.2d at 507. Liberally reviewing Ramirez’s

indictmen t, we find that the term “unlawfully” coupled with the

reference to the statute is sufficient evidence that the grand jury

did consider and find evidence to support the “arrest” element of7

the offense charged. Alternatively, under the April 1, 1997

version, “arrest” is no longer a required element of the crime.

III. Conclusion

The conviction is AFFIRMED.