United States v. Ismail ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20240
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
NADEEM SADRUDDIN ISMAIL,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
USDC No. H-99-CR-713-1
June 7, 2001
Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.
PER CURIAM:*
Defendant Nadeem Sadruddin Ismail appeals his conviction for
violation of 8 U.S.C. § 1326 which prohibits a person who has been
previously deported from being present in the United States without
consent of the Attorney General. We affirm.
*
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opinion should not be published and is not precedent except under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.
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In December 1999, Ismail was indicted for having been found
present in the United States after having been deported, in
violation of § 1326(a) and (b)(2). Ismail moved to dismiss the
indictment on grounds that it failed to allege any actus reus or
any intent. The district court denied the motion, convicted Ismail
after a bench trial, and sentenced him to serve a 63-month prison
term and three years of supervised release.
We review Ismail’s challenges to the sufficiency of his
indictment de novo. See United States v. Guzman-Ocampo, 236 F.3d
233, 236 (5th Cir. 2000).
Ismail contends that his indictment was insufficient to
support the 16-level increase in his offense level and the
resulting enhanced sentence under § 1326(b)(2) because it did not
allege his prior conviction. Section 1326(a) provides that an
alien without a prior conviction who is convicted of illegal
reentry following deportation faces a two-year maximum prison
sentence. Under § 1326(b)(2), however, if the alien’s prior
deportation was subsequent to a conviction for an aggravated
felony, the maximum sentence is twenty years. The Supreme Court
has held that, because § 1326(b)(2) provides for a sentencing
factor and not a separate criminal offense, the aggravated felony
triggering the increased maximum penalty need not be alleged in the
indictment. Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998). Ismail acknowledges that Almendarez-Torres forecloses the
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issue, but he argues that Apprendi v. New Jersey, 120 S. Ct. 2348
(2000), indicates that Almendarez-Torres is no longer viable. See
Apprendi, 120 S. Ct. at 2362 & n.15. However, this court has held
that the Supreme Court’s Apprendi decision “expressly declined to
overrule Almendarez-Torres,” which therefore remains in effect.
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert.
denied, 121 S. Ct. 1214 (2001). We find no merit in Ismail’s
Apprendi argument.
Ismail next contends that his indictment does not charge an
offense because it fails to allege any general intent on his part.1
The general intent of a defendant to re-enter the United States may
be inferred from the fact that the defendant was previously
deported and subsequently found in the United States without
consent of the Attorney General. United States v. Berrios-Centeno,
___ F.3d ___, 2001 WL 435494, *3 (5th Cir. April 27, 2001). The
indictment in the instant case is almost identical to the
indictment found sufficient in Berrios-Centeno. Id. at *4 n.4. We
1
Ismail’s indictment states:
THE GRAND JURY CHARGES THAT
Count One
On or about November 1, 1999, in the Houston Division of
the Southern District of Texas,
NADEEM SADRUDDIN ISMAIL
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 the consent of the
Attorney General of the United States to apply for readmission
into the United States.
[Violation: Title 8, United States Code, Section 1326(a) and
(B)(2)]
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conclude that Ismail’s indictment sufficiently alleged the general
intent mens rea required in § 1326 offenses.
For the foregoing reasons, we affirm Ismail’s conviction.
AFFIRMED.
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