Illegal Reentry After Deportation- Federal

 8 U.S.C. § 1326(a)

Title 8, United States Code, Section 1326(a), makes it a crime for an alien to enter [to be found within] the United States without consent of the Attorney General to apply for readmission after being deported.
For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt:
First: That the defendant was an alien at the time alleged in the indictment;
Second: That the defendant had previously been denied admission [excluded] [removed] [deported] from the United States;
Third: That thereafter the defendant knowingly entered [was found in] the United States; and
Fourth: That the defendant had not received the consent of the Attorney General of the United States to apply for readmission to the United States since the time of the defendant's previous deportation.

Specific intent is not an element of this crime; it is a general intent crime. United States v. Berrios-Centeno, 250 F.3d 294, 297–98 (5th Cir.2001); United States v. Guzman-Ocampo, 236 F.3d 233 (5th Cir.2000). The government must show that the defendant had the general intent to reenter, i.e., he is here voluntarily. Id.; United States v. Ortegon-Uvalde, 179 F.3d 956 (5th Cir.1999); United States v. Trevino-Martinez, 86 F.3d 65 (5th Cir.1996), cert. denied, 117 S.Ct. 1109. See United States v. Tovias-Marroquin, 218 F.3d 455 (5th Cir.2000).
An alien within the United States is not “found in” the United States if he approaches a recognized port of entry and produces his identity seeking admission. United States v. Angeles-Mascote, 206 F.3d 529 (5th Cir.2000).
The Supreme Court has held in Almendarez-Torres v. United States, 118 S.Ct. 1219 (1998), that proof of the defendant's commission of an aggravated felony prior to deportation is not an element of the offense but is a punishment provision in addressing recidivism. The decision is further discussed but not overruled by Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). Until Almendarez-Torres is overruled, the Fifth Circuit has held that it has the duty to follow it as United States Supreme Court precedent. United States v. Nava-Perez, 242 F.3d 277 (5th Cir. 2001); United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000). The Committee has not recommended an additional element of proof that the felony committed was an aggravated felony.

8 1326 



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