This offense is an “aggravated felony” under the Immigration and

Nationality Act. See 8 U.S.C. § 1101(43)(B). UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 95-40677

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

Jose TREVIÑO-MARTINEZ,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________________________

June 7, 1996

Before JONES, SMITH, and STEWART Circuit Judges.

EDITH H. JONES, Circuit Judge:

Jose Treviño-Martinez (“Treviño”) appeals his conviction

for illegally reentering the United States. 8 U.S.C. § 1326(b).

This court agrees with the majority of courts of appeals that

Treviño's crime was not a specific intent offense. Overruling

appellant's chal lenges centered on that point, we affirm the

conviction.

BACKGROUND

In 1988, Treviño, a Mexican citizen, was arrested in the

United States and convicted of possession of marijuana with intent

to distribute. 1 After serving six months in jail for this offense,2

Treviño was deported pursuant to the Immigration and Nati onality

Act, 8 U.S.C. §§ 1101-1524. Under the terms of his deportation,

before reentering the United States, Treviño was required to obtain

the express consent of the Attorney General; failure to do so would

subject him to fines and imprisonment. In fact, since Treviño had

committed an aggravated felony while in this country, he confronted

the prospect of 20 years of impri sonment should he illegally

reenter the United States. 8 U.S.C. § 1326(b)(2).

Undaunted, however, Treviño illegally returned to the

United States in January of 1991. He was immediately arrested and,

after serving four months in jail, was deported to Mexico in May of

1991. Even after this second deportation, Treviño sought

to return to this country from Mexico. In 1992, purportedly

longing to visit his wife and four children in the United States,

Treviño applied f or a non-immigrant visa with the United States

consulate in Monterrey, Mexico. The Monterrey consulate’s standard

visa application procedure requires applicants to complete a form

that, in part, inquires whether the applicant had been previously

arrested or deported. While there is some dispute about whether

Treviño compl eted this standard visa application or some other,

modified application that did not inquire into previous arrests or

deportations, Treviño acknowledges that the consular officials were

unaware of his prior arrests and deportations. After considering

his application, the American consulate issued Treviño a ten-year,Treviño’s visa permitted him multiple reentries into the United States

for up to 72 hours per entry.

3 non-immigrant visa and, pursuant to its usual practice, destroyed

the application form one year later. 2

For the next few years, Treviño made frequent trips to

the United States. On one such trip in January of 1995, Treviño

was jailed for ten days on convictions for DWI and for driving with

a suspended license. During his confinement, border patrol agents

conducting a routine examination of the jail interviewed Treviño,

who confessed that he was in this country illegally because of his

prior arrests and deportations. Treviño was subsequently indicted

on the charge of illegal reentry after deportation.

After a two-day jury trial, Treviño was convicted of the

offen se and was later sentenced to serve 77 months imprisonment,

followed by three years of supervised release.

DISCUSSION

The sole contested issue during Treviño’s tr i al was

whether he had obtained the consent of the Attorney General of the

United States to reenter this country. The only issues on appeal

concern defense-proffered jury instructions that were rejected.

Treviño contends that he reasonably believed that the non-immigrant

visa issued to him by the American consulate in Monterrey entitled

him to reenter the United States legally; put differently, Treviño

argues that he reasonably concluded that his visa somehow acted as

a proxy for the consent of the Attorney General. Based on this4

contention, Treviño submitted proposed jury instructions on express

consent, mistake of law, and entrapment by estoppel.

I. Standard of Review

Recognizing that district courts enjoy substantial

latitude in formulating jury instructions, this court reviews the

refusal to provide a requested instruction for abuse of discretion.

United States v. Smithson, 49 F.3d 138, 142 (5th Cir. 1995). The

district court abuses its discretion when it declines a proffered

instruction only if this instruction “(1) was a correct statement

of the law, (2) was not substantially covered in the charge as a

whole, and (3) concerned an important point in the trial such that

the failure to instruct the jury on the issue seriously impaired

the defendant’s ability to present a given defense.” Id.

II. Express Consent

Treviño sought to have the jury ins tructed that it was

entitled to find that the American consulate’s decision to issue

him a non-immigrant visa “satisfies the requirement that he obtain

the express consent of the Attorney General

. . . .” The district

court did not err in rejecting this clearly incorrect statement of

law.

An alien who has been previously arrested and deported is

required to obtain the express consent of the Attorney General

prior to his application for readmission to the United States. S ee

8 U.S .C. § 1326. Typically, an alien obtains such consent by

securing a w ritten authorization from the Immigration and

Naturalization Service (“INS”) permitting him to reenter this5

country. Importantly, however, this authorization may be issued

only by the Attorney General or the INS; under the statute, the

American consulate is powerless to grant such an authorization. 8

C.F.R. §§ 212.2(b)(2), 212.4(c). Treviño could not demonstrate

that eith er the Attorney General or the INS expressly authorized

his reentry into the United States. His proposed jury instruction

was wrong.

III. Mistake of Law

Treviño next tendered an instruction that required

acquittal if the jury found that he mistakenly believed that he had

obtained proper authorization to reenter the United States and if

this “mistaken belief was reasonable and [Treviño] did not intend

to enter the United States unlawfully

. . . .” (emphasis added).

To support this proffered instruction, Treviño urges that the

statute prohibiting his reentry requires the gove rnment to prove

beyond a reasonable doubt that he acted with specific intent to

circumvent the express consent of the Attorney General.

However, the language of the statute belies the existence

of a requirement of specific intent. In pertinent part, 8 U.S.C.

§ 1326 provides that any alien who

(1) has been arrested and deported or excluded

and deported, and thereafter

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

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

to his reembarkation at a place outsi de the

United States or his application for admission

fro m foreign contiguous territory, the

Attorney General has expressly consented to

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

with respect to an alien previously excluded

and deported, unless such alien shall

establi sh that he was not required to obtainAs discussed earlier, although this section imposes a maximum

imprisonment of two years, Treviño was eligible for up to 20 years of imprisonment

as he had been convicted while in the United States of the aggrava ted felony of

possession of marijuana with intent to distribute. See 8 U.S.C. § 1326(b)(2).

6 such advance consent . . . . shall be fined .

. . or imprisoned not more than 2 years, or

both.

8 U.S.C. § 1326 (a)(1)-(2). 3 Congress did not impose a requirement

of specific intent anywhere in the statute nor did it provide that

an alien’s re asonable belief that he was legally entitled to

reenter the United States is a defense to criminal liability.

This court has previously opined as much, suggesting in

dictum that the government “is not required to show specific intent

in a § 1326 prosecution.” United States v. Wong Kim Bo, 472 F.2d

720, 722 (5th Cir. 1972). Other circuits have confronted the issue

directly, and the majority agree that the statute neither requires

the government to prove specific intent nor allows an alien to

defeat co nviction by demonstrating a reasonable belief of

permission to reenter this country. S ee United States v. LeonLeon, 35 F.3d 1428, 1432-22 (9th Cir. 1994) (specific intent is not

an element of § 1326) ; United States v. Champegnie, 925 F.2d 54,

55-56 (2d Cir. 1991) (same); United States v. Espinoza-Le on, 873

F.2d 743, 746 (4th Cir.), cer t. denied, 492 U.S. 924, 109 S. Ct.

3257 (1989); United States v. Miranda-Enriquez, 842 F.2d 1211, 1212

(10th Cir.), cert. denied, 488 U.S. 836, 109 S. Ct. 100 (1988);

United States v. Hussein, 675 F.2d 114, 116 (6th Cir.) (same),

cert. denied, 459 U.S. 869, 103 S. Ct. 154 (1982). Only a divided

panel of the Seventh Circuit, over a dissent by Judge Posner, hasContrary to appellant’s suggestion, this court’s holding that the government

need not prove specific intent neither implicates nor contravenes the S upreme

Court’s decision in Liparota v. United States, 471 U.S. 419, 105 S. Ct. 2084 (1985).

In sharp contrast to the instant case, the statute in L iparota expressly

contemp lated a mens rea requirement. Specifically, the statute prohibited the

fraudulent use of food stamps and provided that “whoever knowingly uses, transfers,

acquires, alters, or possesses coupons or authorization c ards in any manner not

aut horized by [the statute] or the regulations” shall be guilty of a criminal

offense. Liparota, 471 U.S. at 420, 105 S. Ct. at 2085 (emphasis added). The

Supreme Court observed that “Congress certainly intended by use of the word

‘knowingly’ to require some mental state with respect to some element of the crime

defined [by the statute].” L iparota, 471 U.S. at 424, 105 S. Ct. at 2087 (emphasis

in original).

Furthermore, the Supreme Court emphasized that its holding in Liparota

did not support or create a mistake of law defense. The Court explained that its

holding . . . no more creates a ‘mistake of law’ defense

than does a statute making knowing receipt of stolen goods

unlaw ful . . . . It is not a defense to a charge of

receipt of stolen goods that one did not know that such

receipt was illegal, and it is not a defense to a charge

of a § 2024(b)(1) violation that one did not kn ow that

possessing food stamps in a manner unauthorized by statute

or regulations was illegal.

L iparota, 471 U.S. at 425 n.9, 105 S. Ct. at 2088 n.9. In the same fashion, the

instant statute does not allow an alien to defeat conviction by de monstrating a

reasonable belief of permission to reenter this country.

7 ruled to the contrary. U nited States v. Anton, 683 F.2d 1011, 1017

(7th Cir. 1982) (holding that “there is some ment al state

requirement” for a § 1326 prosecution).

This court concludes with the majority of circuits that

§ 1326 does not require the government to prove specific intent nor

does it provide an alien who reenters this country illegally with

a defense of reasonable mistake. 4 As a result, the proposed jury

instruction is directly contrary to the express statutory language

and is an incorrect statement of the law.

IV. Entrapment by Estoppel

Finally, Trev iño contends that even if § 1326 does not

require the government to prove specific intent, the district court

nonetheless erroneously refused to instruct the jury on entrapment

by estoppel. Treviño asserted that the jury must acquit him if it

found that he had relied on “misleading informati on furnished by8

the government and mistakenly thought his conduct was sanctioned by

the governmen t,” provided the jury found such reliance to be

“reasonable and sincere.”

Th is court has recently explained that a criminal

defendant may be entitled to raise a defense of entrapment by

estoppel only “when a government official or agent actively assures

a defendant that certain conduct is legal and the defendant

reasonably relies on that advice and continues or initiates the

conduct .” U

nited States v. Spires, 79 F.3d 464, 466 (5th Cir.

1996). See also, United States v. Meraz-Valeta, 26 F.3d 992, 996

(10th Cir. 1994) (government must mislead the defendant and the

defendant must reasonably rely on this misrepresentation) ( citing

Cox v. Louisiana, 379 U.S. 559, 568-71, 85 S. Ct. 476, 482-84

(1965); Raley v. Ohio, 360 U.S. 423, 437-39, 79 S. Ct. 1257, 1265-

67 (1959)). Hence, the government must actively mislead the

d efendant by inducing him to rely on “an affirmative

misrepresentation of the law by [the government official].” U nited

States v. Howell, 37 F.3d 1197, 1204 (7th Cir. 1994), cert. denied,

___ U.S.

___, 115 S. Ct. 1810 (1995). In order for his reliance to

be reasonable, the defendant must estab lish that “a person

sincerely desirous of obeying the law would have accepted the

information as true, and would not have been put on notice to make

further inquiries.” U nited States v. Brebner, 951 F.2d 1017, 1024

(9th Cir. 1991) (citations omitted).

There is no evidence in the recor d to support this

defense for Treviño. He did not demonstrate that the American9

con sulate affirmatively misrepresented as legal his attempts to

reenter this country; he was not actively misled by the government

since the consulate did not assure Treviño that his actions were

proper. S ee, e.g., United States v. Clark, 546 F.2 d 1130, 1135

(5th Cir. 1977). Moreover, because Treviño was not candid about

his prior arrests and deportations, the consu late could not have

actively misrepresented his attempts to reenter this country as

legal; without that material information, the consulate was unaware

that Treviño was required to obtain the express consent of the

Attorney General before reentering the United States. Treviño does

not suggest nor does the record indicate that the consulate assured

him that the non-immigrant visa was a proxy for the consent of the

Attorney General. Further, as Treviño did not reveal his

background, he could not have reasonably relied on the consulate’s

"misrepresentations" of his actions as legal.

CONCLUSION

For the foregoing reasons, t his court A FFIRMS the

conviction of Treviño for illegally reentering the United States.