* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 17 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. NICOLAS GALINDO, Defendant - Appellant. No. 03-2297 (D.C. No. CR-02-2096-JC) (D.N.M.)

ORDER AND JUDGMENT *

Before KELLY , HENRY , and TYMKOVICH , Circuit Judges. **

Defendant-Appellant Nicolas Galindo appeals from hi s conviction and sentence under 8 U.S.C. § 1326 for his entry after having been previously deported following his conviction for an aggravatedfelony. He challenges the sufficiency of the indictment. Our jurisdiction ar ises under 28 U.S.C. § 1291, and we affirm.- 2 -

Mr. Galindo was arrested on October 26, 2002 in Tao s, New Mexico on an outstanding warrant for Aggravated Battery With A D eadly Weapon. 2 R. at 3, ¶ 4. In a one-count indictment, Mr. Galindo was char ged as follows:

On or about the 26th Day of October, 2002, the defe ndant, NICOLAS GALINDO, an alien, was found in Taos County , in the State and District of New Mexico, contrary to law i n that the defendant had been deported, excluded and removed and departed the United States on or about May 1, 2001, while an ord er of exclusion, deportation and removal was outstanding subsequent to a conviction for an aggravated felony, to wit, Aggravated Battery (deadly weapon) in Taos County, New Mexico and the said defendant h ad not obtained the consent of the Attorney General of the United S tates for reapplication by the defendant for admission into the United States. In violation of 8 U.S.C. § 1326(a)(1) and (2), and 8 U.S.C. § 1326(b)(2). 1 R. Doc. 10. Mr. Galindo pleaded guilty to the in dictment on February 28, 2003. 1 R. Doc. 25, 26. He was sentenced to 57 months inprison and two years of unsupervised release and ordered to pay a $100 spec ial penalty assessment. 1 R. Doc. 35. On appeal, Mr. Galindo argues that his conviction s hould be overturned because the indictment did not allege the element o f intent, thus violating his Fifth and Sixth Amendment rights. Thus he argues the court committed plain error by failing to dismiss the indictment. Mr. Ga lindo did not challenge the sufficiency of the indictment below and pleaded gui lty to the offense. By entering a voluntary plea of guilty, Mr. Galindo wa ived all non-jurisdictional defenses. United States v. Flynn , 309 F.3d 736, 739 (10th Cir. 2002); United- 3 -

States v. Davis , 900 F.2d 1524, 1525-26 (10th Cir. 1990); see also Tollett v. Henderson , 411 U.S. 258, 267 (1973) (“When a criminal defend ant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent cl aims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.”). Given that Mr. Galindo’s challenge regarding the om ission of the intent element in the indictment does not present a “jurisdictiona l” defect, see United States v. Cotton , 535 U.S. 625, 631 (2002), he has waived all but p lain error review. We also note Mr. Galindo has made no assertion that hi s plea was involuntary or unknowing, and we find no support for this conclusi on. Under our review for plain error, Mr. Galindo’s cla im fails. The Fifth Amendment provides that no person shall be held to answer for “a capital, or otherwise infamous crime, unless on a presentment o r indictment of a Grand Jury.” U.S. Const. amend. V. The Sixth Amendment provides that in “all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation.” U.S. Const. a mend. VI. An indictment meets these constitutional requirements “if it sets forth the elements of the offense charged, puts the defendant on fair notice of the charges against which he must defend, and enables the defendant to assert a double jeopardy defense.” United States v. Hathaway , 318 F.3d 1001, 1009 (10th Cir. 2003); see also United- 4 -

States v. Bolton , 68 F.3d 396, 400 (10th Cir. 1995). Although § 1326 is silent regarding the required intent, this court has concluded that the statute requires a showing of ge neral intent–“that the defendant willfully and knowingly reentered the United States and that he did so without the Attorney General’s permission.” United States v. G utierrez-Gonzalez , 184 F.3d 1160, 1165 (10th Cir. 1999). Because general intent is an element of the offense, it must be alleged in the indictment. See United States v. Berrios-Centeno , 250 F.3d 294, 297 (5th Cir. 2001). Although we have not previously addressed the const itutional sufficiency of an indictment alleging a violation of § 1326 that d oes not explicitly include the intent element, we agree with our sister circuits that have addressed this issue. See United States v. Parga-Rosas , 238 F.3d 1209, 1213 (9th Cir. 2001) (finding an indictment sufficient if it alleges “that the de fendant is a deported alien subsequently found in the United States without permission”); United States v. Guzman-Ocampo , 236 F.3d 233, 239 (5th Cir. 2000) (finding an alm ost identical indictment sufficient because the indictment “fairl y imported that [the defendant’s] reentry was a voluntary act in view of the allegations that he had been excluded, deported, and removed and that he wa s present without having obtained the consent of the Attorney General.”). T he indictment stated that Mr. Galindo was “found in” the United States, after hav ing been previously “deported,- 5 -

excluded and removed,” without the “consent of the Attorney General of the United States.” 1 R. Doc. 10. Given the allegatio ns in the indictment, it appears the language adequately included all the material e lements of the offense, including that of intent, thus ensuring that the gr and jury passed on all of the essential elements of the offense and that Mr. Gali ndo was adequately notified of the charges against him. Our conclusion is reinforced by the reference in th e indictment to § 1326(a) and (b). “Although we have held that reference to the charging statute in the body of the indictment is not alone a sufficient su bstitute for the recitation of an essential element, we have held that reference to t he statute can be a factor when assessing the sufficiency of an indictment.” Unite d States v. Avery , 295 F.3d 1158, 1175-76 (10th Cir. 2002) (internal quotation marks, citations, and alterations omitted). Thus we conclude the failure of the indictment to specifically allege the element of intent under § 1 326 did not constitute plain error in this case. AFFIRMED. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge