*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this opinion should not be published and is not precedent except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

_____________________

No. 00-20044

Summary Calendar

_____________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

ADRIAN DANIEL CARDENAS-VALDEZ, also known as Pedro

Gonzalez-Valdez, also known as Daniel Cardenas

Defendant - Appellant

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-99-CR-362-1

_________________________________________________________________

May 9, 2001

Before KING, Chief Judge, and WIENER and DENNIS, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Adrian Daniel Cardenas-Valdez appeals

his conviction under 8 U.S.C. § 1326. For the following reasons,

we AFFIRM.
 

1 Section 1326 states in relevant part:

(a) In general

 Subject to subsection (b) of this section, any alien

who—

 (1) has been denied admission, excluded,

deported, or removed or has departed the United States

while an order of exclusion, deportation, or removal is

outstanding, and thereafter

 (2) enters, attempts to enter, or is at any time

found in, the United States, unless (A) . . . the

Attorney General has expressly consented to such

alien’s reapplying for admission; or (B) . . . such

alien shall establish that he was not required to

2

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 12, 1999, Defendant-Appellant Adrian Daniel

Cardenas-Valdez, a citizen of Mexico, was deported to Mexico from

Hidalgo, Texas. In early April 1999, Cardenas-Valdez was

arrested for criminal mischief in Houston, Texas. A few days

later, an Immigration and Naturalization (“INS”) agent

interviewed Cardenas-Valdez at the Harris County Sheriff’s

Office. The INS agent determined that Cardenas-Valdez was an

undocumented alien with a criminal record. That same day,

Cardenas-Valdez gave another INS agent a signed statement

admitting that he was citizen of Mexico, that he illegally

entered the United States in April 1999, that he was previously

deported to Mexico from Hidalgo, and that he had not applied for

permission from the U.S. Attorney General to reenter the country.

On June 25, 1999, Cardenas-Valdez was charged in a one-count

indictment with being present in the United States as a

previously deported alien. See 8 U.S.C. § 1326(a), (b)(2).1 He
obtain such advance consent . . ., 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 described in such subsection—

. . . .

 (2) whose removal was subsequent to a conviction

for commission of an aggravated felony, such alien

shall be fined . . ., imprisoned not more than 20

years, or both . . . .

8 U.S.C. § 1326 (1999).

 

2 The indictment against Cardenas-Valdez states:

THE GRAND JURY CHARGES:

COUNT ONE

On or about April 4, 1999, in the Houston Division

of the Southern District of Texas,

ADRIAN DANIEL CARDENAS-VALDEZ,

a/k/a Adrian Cardenas,

a/k/a Adrian Daniel Cardenas,

a/k/a Pedro Gonzales-Valdez,

a/k/a Daniel Cardenas,

a/k/a Pedro Valdez-Gonzales,

a/k/a Carlos Cecillio,

a/k/a Adrean Cardenas,

defendant herein, an alien previously 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.

[Violation: Title 8, United States Code, Sections

1326(a) and 1326(b)(2)]

3

entered a plea of not guilty on July 8, 1999. Cardenas-Valdez

then filed a motion to dismiss the indictment2 for failing to

allege any intent or act on his part and a motion to suppress the
4

evidence of his prior deportation. The district court

subsequently denied both motions.

Following these rulings, Cardenas-Valdez waived his right to

a trial by jury. Based on an agreed stipulation of facts, the

district court found Cardenas-Valdez guilty of the charge

contained in the indictment. On January 10, 2000, the district

court sentenced Cardenas-Valdez to fifty-seven months in prison

and three years of supervised release.

Cardenas-Valdez timely appeals.

II. STANDARD OF REVIEW

We review challenges to the sufficiency of the indictment,

which have been preserved by being raised in the district court,

under a de novo standard of review. See United States v. GuzmanOcampo, 236 F.3d 233, 236 (5th Cir. 2000); United States v.

Asibor, 109 F.3d 1023, 1037 (5th Cir. 1997). Furthermore,

“[b]ecause an indictment is jurisdictional, . . . the defect is

not waived by a guilty plea.” United States v. Cabrera-Teran,

168 F.3d 141, 143 (5th Cir. 1999) (internal quotations and

citations omitted); see also United States v. Marshall, 910 F.2d

1241, 1243 (5th Cir. 1990).

III. CARDENAS-VALDEZ’S CHALLENGES TO HIS CONVICTION

Cardenas-Valdez raises five issues on appeal regarding the

sufficiency of the indictment and due process. He contends: (1)
5

his indictment was defective for failing to allege specific

criminal intent; (2) his indictment was defective for failing to

allege general intent; (3) his indictment was defective for

failing to allege any criminal act; (4) his indictment was

defective for failing to allege the fact of his prior conviction;

and (5) the evidence of his prior deportation should have been

suppressed because he was denied due process at his prior

deportation proceeding.

A. Specific Criminal Intent

Cardenas-Valdez concedes that, under the law of this

circuit, § 1326 does not require that an indictment allege

specific intent. See, e.g., United States v. Ortegon-Uvalde, 179

F.3d 956, 959 (5th Cir.), cert. denied, 528 U.S. 979 (1999);

United States v. Treviño-Martinez, 86 F.3d 65, 68 (5th Cir.

1996); see also, e.g., United States v. Peralt-Reyes, 131 F.3d

956, 957 (11th Cir. 1997); United States v. Ayala, 35 F.3d 423,

426 (9th Cir. 1994). Cardenas-Valdez raises this issue to

preserve it for further review by the Supreme Court.

B. General Criminal Intent

In essence, Cardenas-Valdez argues that the indictment

violates the Fifth and Sixth Amendments to the U.S. Constitution

because it does not allege, at the very least, any general intent

on his part. We recently considered this very issue. See United

States v. Berrios-Centeno, No. 00-20373, --- F.3d ---- (5th Cir.

April 27, 2001). We first held that § 1326 is a general intent
6

offense (and not a strict liability offense, as advocated by the

government). See id., manuscript at 6-8. We also held that

Berrios-Centeno’s indictment sufficiently alleged the requisite

general intent as it fairly conveyed that the defendant’s

presence in the United States was a voluntary act. See id.,

manuscript at 9-12. The indictment in the instant case is almost

identical to the indictment found sufficient in Berrios-Centeno. 

For the reasons stated in Berrios-Centeno, we conclude that

Cardenas-Valdez’s indictment sufficiently alleged the general

intent mens rea required of § 1326 offenses.

C. Criminal Act

Cardenas-Valdez also argues that his indictment failed to

allege that he had committed any criminal act because it charged

only a passive “status crime” of having been found in the United

States. He recognizes that this argument is foreclosed by our

decision in United States v. Tovias-Marroquin, 218 F.3d 455, 456-

57 (5th Cir.), cert. denied, 121 S. Ct. 670 (2000), and raises

this issue for preservation purposes only.

D. Prior Conviction

Cardenas-Valdez received a sentence enhancement as a result

of a prior felony conviction. He argues on appeal that prior

felony convictions are elements of the offense under 8 U.S.C.

§ 1326, as opposed to mere sentencing enhancements. He

recognizes that this issue has been resolved against him by

Almendarez-Torres v. United States, 523 U.S. 224 (1998). See
7

United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000)

(stating, in a case regarding the very challenge that CardenasValdez asserts here, that lower courts are compelled to follow

directly controlling Supreme Court precedent “‘unless and until’”

the Court speaks to the contrary (citations omitted)), cert.

denied, 121 S. Ct. 1214 (2001). Cardenas-Valdez raises this

issue in order to preserve it for further review by the Supreme

Court.

E. Due Process in Prior Deportation Proceeding

Finally, Cardenas-Valdez asserts that the district court

erred by denying his motion to suppress the evidence of his prior

deportation. He argues that the administrative removal procedure

denied him due process and that the removal should not have been

used against him to establish his § 1326 offense. He claims

further that he was deprived of an impartial decisionmaker

because the INS acted as investigator, prosecutor, and

adjudicator in his deportation case. As a result, he contends

that he may obtain relief without showing any actual prejudice

from his defective deportation proceeding.

Cardenas-Valdez concedes this argument is also foreclosed by

our decisions in United States v. Benitez-Villafuerte, 186 F.3d

651 (5th Cir. 1999), cert. denied, 120 S. Ct. 838 (2000), and

United States v. Lopez-Vasquez, 227 F.3d 476 (5th Cir. 2000). 

Again, he raises the argument for preservation purposes only.
8

IV. CONCLUSION

For the foregoing reasons, the conviction of Adrian Daniel

Cardenas-Valdez is AFFIRMED.