United States v. De La Paz-Sandoval ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANCISCO DE LA PAZ-SANDOVAL,
No. 96-4326
a/k/a Alex Sandoval-Benitez, a/k/a
Roberto Cabasas, a/k/a Roberto
Pledra,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-95-57)
Submitted: February 27, 1997
Decided: March 13, 1997
Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Richard A. Davis, Charlottesville, Virginia, for Appellant. Robert P.
Crouch, Jr., United States Attorney, Jean B. Hudson, Assistant United
States Attorney, Charlottesville, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant Francisco De La Paz-Sandoval pled guilty to unlawfully
re-entering the country after having been deported, in violation of 8
U.S.C. § 1326(a) (1994). The district court sentenced Appellant to
serve eighty-four months imprisonment to be followed by immediate
deportation and two years supervised release. He appeals his convic-
tion and sentence. We affirm.
Appellant contends that the indictment charging him with violation
of 8 U.S.C. § 1326(a), (b)(2) is fatally defective for failing to allege
that he was arrested and deported prior to his unlawful re-entry into
the United States. Counsel has also moved this court for leave to
withdraw representation.
Appellant did not object to the sufficiency of the indictment prior
to trial; therefore, we review this issue for plain error. See Fed. R.
Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993). An
appellate court will not notice an error raised for the first time on
appeal unless (1) there is an error, (2) which is plain, (3) which affects
the substantial rights of the defendant, and (4) which must be cor-
rected to avoid a miscarriage of justice or damage to the "fairness,
integrity or public reputation of judicial proceedings." Olano, 507
U.S. at 736-37; see United States v. Cedelle, 89 F.3d 181, 184 (4th
Cir. 1996).
A conviction under § 1326 requires the government to show "`(1)
that the defendant is an alien who was previously arrested and
deported, (2) that he re-entered the United States voluntarily, and (3)
that he failed to secure the express permission of the Attorney Gen-
eral to return.'" United States v. Joya-Martinez, 947 F.2d 1141, 1143
(4th Cir. 1991) (citing United States v. Espinoza-Leon, 873 F.2d 743,
746 (4th Cir. 1989)). The indictment charging Appellant with violat-
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ing § 1326 alleged that he had previously been convicted and
deported prior to his illegal re-entry into the United States, but did not
refer to an arrest. The evidence presented at Appellant's Fed. R. Crim.
P. 11 hearing and contained in his pre-sentence report established his
multiple arrests and convictions for various offenses.
A conviction pursuant to an indictment that omits an element of the
offense cannot stand if the challenge is raised before the verdict.
However, when the challenge is not raised until after the verdict, as
it was here, every intendment is indulged in support of the indict-
ment's sufficiency. See United States v. Vogt , 910 F.2d 1184, 1201
(4th Cir. 1990). Moreover, such an indictment will be held sufficient
if it contains "`words of similar import.'" Vogt, 910 F.2d at 1201(quoting Finn v. United States, 256 F.2d 304, 306 (4th Cir. 1958)).
We find that the instant indictment meets this test. As they are used
here, the words "convicted" and "arrested" are of similar import. Con-
sidering that an arrest is inherent in every conviction, the indictment
imposed, and the evidence supported, a greater burden of proof than
that required by the statute. Finding no error, we reject this belated
challenge to the sufficiency of the indictment and affirm Appellant's
conviction and sentence.
We deny counsel's motion for leave to withdraw his representation.
This court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel's motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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