FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 03-50244

Plaintiff-Appellee, D.C. No.

v. CR-02-01910-IEG 

JOSE LUIS RIVERA-SILLAS, ORDER AND

Defendant-Appellant. AMENDED

OPINION 

Appeal from the United States District Court

for the Southern District of California

Irma E. Gonzalez, District Judge, Presiding

Argued and Submitted

June 9, 2004—Pasadena, California

Filed July 15, 2004

Amended July 29, 2005

Second Amendment August 25, 2005

Before: Thomas G. Nelson, A. Wallace Tashima, and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Thomas G. Nelson

11459
COUNSEL

Steven Barth, Federal Defenders of San Diego, Inc., San

Diego, California, for the defendant-appellant. 

Carol C. Lam, United States Attorney, Joseph H. Huynh,

Assistant United States Attorney, United States Attorney’s

Office, San Diego, California, for the plaintiff-appellee. 

ORDER

Our amended opinion filed on July 29, 2005, and located

at 2005 WL 1792033, is AMENDED as follows: 

We withdraw the citation to our panel decision in United

States v. Navarro-Vargas at *5 n.32 and replace it with

“United States v. Navarro-Vargas, 408 F.3d 1184, 1202-04

(9th Cir. 2005) (en banc)”. 

We withdraw in their entirety two paragraphs on *5. The

first withdrawn paragraph begins with “In United States v.

Marcucci, we examined . . .” and ends with “was constitutional and without error.” The second withdrawn paragraph

begins with “In United States v. Adams, we followed . . .” and

ends with “and refused to dismiss the indictment on the basis

of the grand jury charge.” 

No further petitions for panel rehearing or for rehearing en

banc shall be entertained. 

11462 UNITED STATES v. RIVERA-SILLAS
The mandate shall issue immediately.

OPINION

T.G. NELSON, Circuit Judge: 

Jose Luis Rivera-Sillas appeals the district court’s denial of

his motions to dismiss his underlying indictment. We hold

that the district court correctly denied Rivera-Sillas’s motions,

and we affirm.

I. FACTS AND PROCEDURAL HISTORY

Appellant Jose Luis Rivera-Sillas is a citizen of Mexico.

On June 23, 2002, a border patrol agent apprehended RiveraSillas and several other people in the United States near the

Tecate Port of Entry. The border patrol agent identified himself to the group, and Rivera-Sillas and his companions admitted that they were citizens of Mexico and did not have legal

documentation to be in the United States. The agent took

Rivera-Sillas to the border patrol center for processing. There,

the IDENT and AFIS fingerprint systems identified RiveraSillas as having been removed from the United States to Mexico six times, the last time on November 30, 2000, via

Nogales, Mexico. 

The border patrol agent read Rivera-Sillas his Miranda

rights, and Rivera-Sillas agreed to speak to the agent without

an attorney present. Rivera-Sillas then repeated that he was a

citizen of Mexico and that he was in the United States without

permission. When Rivera-Sillas realized that authorities were

taking him into custody instead of deporting him to Mexico,

he became confrontational and claimed that the border patrol

field officers had beaten him. Authorities took Rivera-Sillas

UNITED STATES v. RIVERA-SILLAS 11463
to an emergency room, where doctors examined and released

him.1 He was then held in custody. 

On July 23, 2002, a grand jury indicted Rivera-Sillas and

charged him with being 

an alien, who previously had been excluded,

deported and removed from the United States to

Mexico, was found in the United States, without the

Attorney General of the United States having

expressly consented to the defendant’s reapplication

for admission into the United States; in violation of

Title 8, United States Code, Section 1326. 

Rivera-Sillas moved to dismiss the indictment on several

grounds. The district court denied his motion on August 26,

2002. On February 28, 2003, Rivera-Sillas pleaded guilty

under a conditional plea agreement. He retained the right to

appeal to this court the following issues: 

[T]he trial court’s pre-trial denials on August 26,

2002 of Defendant’s: (1) motion to dismiss the

indictment for failure to allege “voluntary entry”;

(2) motion to dismiss the indictment for failure to

allege inspection and admission by an immigration

officer or actual and intentional evasion of inspection; (3) motion to dismiss the indictment for failure

to allege the mens rea element of the charged

offense; (4) motion to dismiss the indictment due to

improper grand jury instructions; and (5) motion to

dismiss the indictment for failure to appoint Defendant counsel at his deportation proceedings. 

Rivera-Sillas now appeals, and we consider, the reserved

issues. 

1A review board of the Office of the Inspector General found that the

agents did nothing wrong. 

11464 UNITED STATES v. RIVERA-SILLAS
II. JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 18 U.S.C.

§ 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291. 

We review the district court’s denial of the motion to dismiss the indictment de novo.

2

III. LACK OF COUNSEL AT DEPORTATION

HEARING

Rivera-Sillas first argues that the district court should have

dismissed the indictment because the use of his uncounseled

2000 deportation as basis for his sentence violated his Sixth

Amendment rights. His argument fails, and we affirm the district court’s refusal to dismiss the indictment on this ground.

Rivera-Sillas argues that Alabama v. Shelton3 dictates that

the district court may not sentence him to imprisonment based

on his underlying, uncounseled deportation. Shelton was convicted in Alabama, without the aid of counsel, of misdemeanor assault. The trial court sentenced him to a thirty-day jail

term, but immediately suspended the sentence. The Alabama

Court of Criminal Appeals affirmed. The Alabama Supreme

Court affirmed Shelton’s conviction, but invalidated the jail

term, holding that a defendant may not be “sentenced to a

term of imprisonment absent provision of counsel.”

4

 The

United States Supreme Court agreed, stating that “Shelton is

entitled to appointed counsel at the critical stage when his

guilt or innocence of the charged crime is decided and his vulnerability to imprisonment is determined. . . .”

5

2United States v. Navarro-Vargas, 367 F.3d 896, 898 (9th Cir. 2004).

3

535 U.S. 654 (2002). 

4

Id. at 659 (internal quotation marks omitted). 

5

Id. at 674. 

UNITED STATES v. RIVERA-SILLAS 11465
[1] Rivera-Sillas argues that his situation mirrors Shelton’s,

as he lacked counsel during the hearing underlying his 2000

deportation, and that deportation is now being used as a basis

for imprisonment. This argument is without merit. The Alabama and United States Supreme Courts invalidated Shelton’s

sentence because he was entitled to counsel at his underlying

criminal proceeding. In contrast, the law does not entitle

aliens to counsel at deportation hearings. A deportation proceeding is administrative in nature and is not accompanied by

a right to counsel.6 That the resultant deportation might be

used against him in a later, unrelated criminal prosecution

does not create a right to counsel. Thus, the fact that RiveraSillas had no counsel at his underlying deportation hearing

creates no constitutional problem. We affirm Rivera-Sillas’s

§ 1326 conviction and sentence for being found in the United

States after being deported. 

Moreover, Rivera-Sillas is not now in prison for the underlying deportation. He is in prison because the court found him

guilty of the crime of being found in the United States after

having been deported. A defendant need not have had counsel

at his underlying deportation hearing in order to be convicted

and sentenced under 8 U.S.C. § 1326. Accordingly, we affirm

the district court. 

IV. VOLUNTARY ENTRY

Rivera-Sillas next argues that voluntary entry is an essential

element of a § 1326 offense. According to Rivera-Sillas, the

Government’s failure to charge that his entry was voluntary

was a failure to state an offense under the statute. Thus, he

contends that the district court should have dismissed the

indictment because it did not specifically state that he voluntarily entered the United States. Rivera-Sillas’s argument

6

See United States v. Lara-Aceves, 183 F.3d 1007, 1012 (9th Cir. 1999),

overruled on other grounds by United States v. Rivera-Sanchez, 247 F.3d

905 (9th Cir. 2001) (en banc). 

11466 UNITED STATES v. RIVERA-SILLAS
fails. The grand jury indicted Rivera-Sillas under the “found

in” clause of § 1326.7 That clause does not require the indictment to specifically state that the defendant alien voluntarily

entered the United States. We affirm the district court’s

refusal to dismiss the indictment on this ground. 

[2] We recognized in United States v. Pacheco-Medina8

that § 1326 delineates three distinct offenses for a deported

alien: to “enter,” to “attempt to enter,” and to be “found in”

the United States without permission.9 To “enter” and to be

“found in” are two separate offenses. Therefore, the Government’s failure to charge one did not render the charging of the

other incomplete. “[W]e have never suggested that the crime

of ‘entry’ must be charged in order to charge the crime of

being ‘found in.’ ”

10 The Government does not need to charge

or prove voluntary entry in a § 1326 “found in” offense;

indeed we have definitively said that “[v]oluntary entry need

not be expressly pled in an indictment for a violation of 8

U.S.C. § 1326.”

11 As we stated in United States v. PargaRosas, “[a]lleging that the defendant is a deported alien subsequently found in the United States without permission suffices”12 for a § 1326 “found in” indictment. 

United States v. Buckland13 did not alter the state of § 1326

jurisprudence. In Buckland, we considered penalty provisions

of a federal drug statute. Because the drug quantity the defendant possessed affected the defendant’s period of imprisonment, we found drug quantity a material fact which the

Government had to charge and prove.14 In contrast, voluntary

7

See 8 U.S.C. § 1326(a)(2). 

8

212 F.3d 1162 (9th Cir. 2000). 

9

Id. at 1165. 

10United States v. Parga-Rosas, 238 F.3d 1209, 1213 (9th Cir. 2001).

11United States v. San Juan-Cruz, 314 F.3d 384, 390 (9th Cir. 2002). 

12Parga-Rosas, 238 F.3d at 1213. 

13289 F.3d 558 (9th Cir. 2002) (en banc). 

14Id. at 568. 

UNITED STATES v. RIVERA-SILLAS 11467
entry in a “found in” offense has no effect on a defendant’s

sentence. It is thus not a material fact under Buckland and it

need not be charged. As we recently stated in United States

v. Rodriguez-Rodriguez,

15 “[b]ecause it is not necessary to

prove or allege voluntary or unlawful entry in a ‘found in’

conviction, and because voluntary entry makes no difference

in a defendant’s exposure to penalties, Buckland in no way

overrules Parga-Rosas.”

16

[3] Rivera-Sillas’s indictment properly charged him with

being a previously deported alien who was found in the

United States without the permission of the Attorney General.

Because the indictment charged a “found in” offense, it did

not have to charge voluntary entry. We therefore affirm the

district court.

V. PROOF OF INSPECTION AND ADMISSION

Rivera-Sillas contends that the district court should have

dismissed the indictment for failure to charge (a) inspection

and admission by an immigration officer or (b) actual and

intentional evasion of inspection at the inspection point nearest to where he was apprehended. Rivera-Sillas’s argument

lacks merit. We affirm the district court. 

[4] Rivera-Sillas argues that this court’s holding in

Pacheco-Medina17 mandates that the Government charge all

elements of the definition of “entry” developed by the Board

of Immigration Appeals in Matter of Pierre.

18 Matter of

Pierre defined “entry” as involving: 

(1) a crossing into the territorial limits of the United

States, i.e. physical presence; plus (2) inspection and

15364 F.3d 1142 (9th Cir. 2004). 

16Id. at 1146. 

17212 F.3d at 1164. 

18Matter of Pierre, 14 I. & N. Dec. 467, 468 (B.I.A. 1973). 

11468 UNITED STATES v. RIVERA-SILLAS
admission by an immigration officer; or (3) actual

and intentional evasion of inspection at the nearest

inspection point; coupled with (4) freedom from

restraint.19

Pacheco-Medina, however, did not require the Government to

charge all the elements of entry. It held that an illegal entrant

to the United States must be free from official restraint in

order for the court to find that the alien illegally entered this

country.20 Thus, it merely addressed the fourth element. 

[5] As discussed above, Pacheco-Medina stated that § 1326

delineates three distinct offenses for a deported alien: to

“enter,” to “attempt to enter,” and to be “found in” the United

States without permission.21 Parga-Rosas recognized these

three distinct offenses and stated: 

[W]e have never suggested that the crime of “entry”

must be charged in order to charge the crime of

being “found in.” Nor did we mean to prescribe a

new rule for pleading when we said in PachecoMedina that “an entry, as defined legally, is required

before a person is ‘found in’ the United States.”

22

Thus, Parga-Rosas clarified the very language from PachecoMedina on which Rivera-Sillas relies. The Government need

not plead and prove entry in order to charge or convict an

alien with a § 1326 “found in” crime. The district court was

correct in denying dismissal of the indictment on this ground,

and we affirm.

19Id. (internal citations omitted). 

20See Pacheco-Medina, 212 F.3d at 1163-64. 

21Id. at 1165. 

22Parga-Rosas, 238 F.3d at 1213 (citation omitted). 

UNITED STATES v. RIVERA-SILLAS 11469
VI. MENS REA

Rivera-Sillas next argues that the district court should have

dismissed the indictment because it did not charge a mens rea

element: general intent. He contends that the indictment had

to charge him with knowing that he was in the United States.

Rivera-Sillas’s argument fails, and we affirm the district

court. 

[6] Section 1326 does not specify mens rea. This does not

mean, however, that § 1326 violation is a status or strict liability offense; it is not.23 A “found in” offense under § 1326

is a general intent crime.24 General intent crimes concern, in

the words of the Fifth Circuit, “willful and knowing acts.”

25

We are comfortable presuming that a defendant who is found

in the United States willfully and knowingly acted in order to

enter this country.26 Therefore, “ ‘[a]lleging that the defendant

is a deported alien subsequently found in the United States

without permission suffices [to allege general intent].’ ”

27

23See United States v. Pina-Jaime, 332 F.3d 609, 613 (9th Cir. 2003)

(requiring the Government to prove an unlawful act in order to convict an

alien of being found in the United States); United States v. Ayala, 35 F.3d

423, 425-26 (9th Cir. 1994) (holding that a § 1326 violation is not a status

crime). 

24See Pina-Jaime, 332 F.3d at 613 (citing Pena-Cabanillas v. United

States, 394 F.2d 785, 790 (9th Cir. 1968) (requiring general intent)). In

contrast, an “attempt to enter” offense under § 1326 is a specific intent

crime. See United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1195-96

(9th Cir. 2000) (en banc). Thus, the Government must charge mens rea in

§ 1326 “attempt to enter” indictments. 

25United States v. Berrios-Centeno, 250 F.3d 294, 299 (5th Cir. 2001).

26See United States v. Quintana-Torres, 235 F.3d 1197, 1200 (9th Cir.

2000) (stating that absent proof otherwise, a juror may infer the defendant

intended to be in the United States if the defendant is found within this

country). 

27Berrios-Centeno, 250 F.3d at 299 (quoting Parga-Rosas, 238 F.3d at

1213) (alterations in original). 

11470 UNITED STATES v. RIVERA-SILLAS
[7] Rivera-Sillas contends that if the Government need not

prove that a defendant has knowledge of his presence in the

United States, a person may be criminally convicted for inadvertently wandering into this country. We addressed this

potential problem in dicta in United States v. Quintana-Torres.

28

In that case, we concluded that there are multiple possibilities

of unknowing and/or involuntary entry into the United States.29

Because involuntary presence in the United States is the rare

exception and not the rule, however, we allow an inference of

voluntariness where the defendant has raised no evidence to

the contrary.30 Rivera-Sillas’s argument therefore bears no

weight. 

[8] We hold, consistent with this court’s prior rulings and

that of the Fifth Circuit, that general intent of the defendant

to reenter the United States may be inferred from the fact that

the defendant was previously deported and was subsequently

found in the United States. Thus, because Rivera-Sillas’s

indictment did allege “that he was deported, removed, and

subsequently present without consent of the Attorney General,” it “fairly conveyed that [his] presence was a voluntary act.”

31

We therefore affirm the district court. 

VII. GRAND JURY INSTRUCTIONS

Rivera-Sillas argues that the district court’s charge to the

grand jury improperly circumscribed the subject matter of the

grand jury’s inquiries and deliberations, and that the charge

therefore runs contrary to the history of the grand jury institution. His argument fails. 

28235 F.3d at 1200. 

29Id. 

30See id.; see also United States v. Castellanos-Garcia, 270 F.3d 773,

776 (9th Cir. 2001) (citing Quintana-Torres, 235 F.3d at 1200). 

31Berrios-Centeno, 250 F.3d at 299-300. 

UNITED STATES v. RIVERA-SILLAS 11471
[9] The district court’s instructions to the grand jury followed the model charge recommended by the Administrative

Office of the United States Courts. The specific portion of the

instruction at issue stated:

You cannot judge the wisdom of the criminal laws

enacted by Congress, that is, whether or not there

should or should not be a federal law designating

certain activity as criminal. That is to be determined

by Congress and not by you. Furthermore, when

deciding whether or not to indict, you should not be

concerned about punishment in the event of conviction. Judges alone determine punishment. 

This court has expressly approved identical grand jury

instructions three times in three separate cases.32

Clear precedent controls this issue, and we therefore affirm

the district court. 

VIII. CONCLUSION

[10] The district court did not err when it denied RiveraSillas’s motion to dismiss the indictment. The decision of the

district court is therefore 

AFFIRMED. 

32See United States v. Navarro-Vargas, 408 F.3d 1184, 1202-04 (9th

Cir. 2005) (en banc); United States v. Adams, 343 F.3d 1024, 1027 n.1

(9th Cir. 2003), United States v. Marcucci, 299 F.3d 1156, 1164 (9th Cir.

2002) (per curiam). 

11472 UNITED STATES v. RIVERA-SILLAS