IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-50069 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE CARMELO GONZALEZ-MEZA,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. W-00-CR-350-ALL

November 7, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Jose Carmelo Gonzalez-Meza was convicted by a jury of

reentering the United States illegally after deportation in

violation of

(a)(1) & 1326(b)(1)(2). He appeals

his conviction and sentence on multiple grounds.

Gonzalez-Meza first argues that his Mirandized statements

should have been suppressed as tainted by his suppressed un-

Mirandized statements. "Mirandized statements made subsequent to

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. an un-Mirandized statement are not the illegal fruit of the prior

statement unless the prior statement was actually involuntary as

opposed to merely presumed involuntary on the basis that it was

given without the benefit of Miranda warnings."1 Here, the record

does not provide any indication that Gonzalez-Meza's un-Mirandized

statements were involuntary or the product of coercion.2 As such,

there is no need to engage in an attenuation analysis pursuant to

Brown v. Illinois,3 and we conclude the district court did not err

in refusing to suppress the Mirandized statements.4

We also find that there was sufficient evidence to sustain the

conviction for illegal reentry, with or without the Mirandized

statements. "Pursuant to the text of § 1326, the government is

required to allege [and prove] only (1) that the defendant was an

alien, (2) that he was 'deported' as that term is contemplated by

the statute, (3) that he subsequently was found within the United

States; and (4) that he did not have the consent of the Attorney

General to reapply for admission."5 In particular, sufficient

1 United States v. Garcia Abrego,

(5th Cir. 1998). 2 See

3

(1975). 4 See Or. v. Elstad,

(1985); United States v. Barte,

(5th Cir. 1989); United States v. Basey,

(5th Cir. 1987). 5 United States v. Guzman-Ocampo,

, 237 n.4 (5th Cir. 2000), cert. denied,

(2001).

2 documentary evidence established that Gonzalez-Meza had previously

been deported and that he did not have the consent of the Attorney

General to reenter the United States.6 Moreover, Gonzalez-Meza's

properly-admitted, sworn statement provides ample evidence that he

had been previously deported.

The district court did not abuse its discretion by denying

Gonzalez-Meza discovery of the audio recording of his prior

deportation hearing because the recording would not have permitted

Gonzalez-Meza to successfully collaterally attack his prior

deportation order on the basis that his Texas state felony drug

conviction was not an "aggravated felony."7 Our precedent

forecloses any argument that his conviction was not such a felony,

and so he cannot establish that any alleged procedural deficiencies

in his earlier hearing caused him actual prejudice.8 Gonzalez-Meza

was also ineligible for discretionary relief under

(h) because of the quantity of drugs for which he was convicted

in Texas state court.9

6 Cf. United States v. Quezeda,

(5th Cir. 1985). 7 See United States v. Hernandez-Avalos,

(5th Cir.), cert. denied, No. 01-5773,

(U.S. Oct. 1, 2001). 8 See

; United States v. Hinojosa-Lopez,

(5th Cir. 1997). 9 See

(h).

3 The district court also did not abuse its discretion in

refusing to exclude testimony that a fingerprint card indicating

that Gonzalez-Meza had a criminal history was found in his INS

Alien File. Even assuming without deciding that the district court

erred in overruling Gonzalez-Meza's Federal Rule of Evidence 404(b)

objection to this evidence, such error would be harmless because

the implication that Gonzalez-Meza had a criminal history did not

have a substantial and injurious effect or influence on the jury's

verdict in light of the other substantial evidence of Gonzalez-

Meza's guilt.10

We also reject Gonzalez-Meza's argument that the district

court’s decision to admit into evidence his statement that he

illegally reentered the United States in 1998 violated Rule 404(b).

Contrary to Gonzalez-Meza's understanding of section 1326, we have

held that "Section 1326 sets forth a continuing offense," which

"begins at the time the defendant illegally re-enters the country

and does not become complete unless or until the defendant is found

by the INS in the United States."11 Moreover, section 1326 is a

general intent offense, requiring that the government prove that

10 See United States v. Polasek,

(5th Cir. 1998); cf. United States v. Torres-Flores,

(5th Cir. 1987) (citing cases where the admission of a "mug shot" which tended to allude to a criminal record or bad character was harmless in light of other strong evidence against the defendant). 11 United States v. Corro-Balbuena,

(5th Cir. 1999); see also United States v. Reyes-Nava,

(5th Cir. 1999).

4 the defendant voluntarily reentered the United States.12 Under

these circumstances, evidence of Gonzalez-Meza's reentry in 1998

"constituted intrinsic background information and therefore Rule

404(b)'s limits on admissibility of extrinsic acts did not apply."13

For the foregoing reasons, Gonzalez-Meza's conviction is AFFIRMED.

Gonzalez-Meza's arguments that our decision in Ruiz-Romero v.

Reno14 implicitly overruled the holding in United States v.

Hinojosa-Lopez15 and that our interpretation of "aggravated felony"

for sentencing purposes violates a fundamental rule of statutory

construction and the rule of lenity are meritless.16 Gonzalez-Meza

12 United States v. Berrios-Centeno,

(5th Cir.), cert. denied, No. 01-5535,

(U.S. Oct. 1, 2001). 13 United States v. Miranda,

(5th Cir.), cert. denied, No. 01-6235,

(U.S. Oct. 15, 2001); see also United States v. Williams,

(5th Cir. 1990). Of course, the necessary voluntary act to meet the general intent requirement could also "be inferred by the fact that a defendant was previously deported . . . and subsequently found in the United States, without consent." Berrios-Centeno,

(internal quotation marks omitted). 14

(5th Cir. 2000). 15

(5th Cir. 1997). 16 See United States v. Rivera,

(5th Cir. 2001) (per curiam) (rejecting a statutory construction and rule of lenity challenge to Hinojosa-Lopez); Hernandez-Avalos,

(reaffirming Hinojosa-Lopez and rejecting the argument that the interpretation of "aggravated felony" employed by the Board of Immigration Appeals is binding on us for sentencing or immigration purposes); Narvaiz v. Johnson,

(5th Cir. 1998) (holding that panel decisions cannot overrule prior panel decisions).

5 now concedes this point to the government but seeks to be

resentenced pursuant to an amendment to U.S.S.G. § 2L1.2, effective

November 1, 2001. This amendment is not listed in U.S.S.G. §

1B1.10(c), however, and so affords Gonzalez-Meza no right to seek

relief from the district court under

(c)(2).17

The district court also did not abuse its discretion by

ordering that Gonzalez-Meza's sentence run consecutive to his state

court sentence for driving while intoxicated. Because, as noted

above, Gonzalez-Meza's section 1326 violation was a continuing

offense begun when he reentered the United States in 1998, and

because a section 1326 violation is not a mere status offense,

U.S.S.G. § 5G1.3(a) authorizes a consecutive sentence in this

case.18

Finally, relying on our recent decision in United States v.

Rodriguez-Montelongo,19 Gonzalez-Meza raises for the first time in

his reply brief the argument that the district court erred in

refusing to grant a downward departure based on cultural

assimilation. Ordinarily, we will not consider an argument raised

17 See U.S.S.G. § 1B1.10(c); United States v. Posada-Rios,

(5th Cir. 1998). 18 See U.S.S.G. § 5G1.3(a); United States v. Tovias-Marroquin,

(5th Cir.), cert. denied,

(2000); Corro-Balbuena,

. 19

(5th Cir. 2001).

6 for the first time in a reply brief.20 This argument, however, is

without merit at all events. The district court here did not

simply believe that it did not have authority to grant such a

downward departure, but rather indicated that it would not exercise

its discretion to grant such a departure if it did have the

authority to do so. Under these circumstances, we cannot review

the district court's refusal to grant a downward departure and so

we dismiss the appeal as to this issue.21 Accordingly, Gonzalez-

Meza's sentence is AFFIRMED.

20 Price v. Roark,

, 368 n.2 (5th Cir. 2001). 21 See United States v. Martinez,

(5th Cir. 2001).

7