                           UNITED STATES COURT OF APPEALS
                                FOR THE FIFTH CIRCUIT

                                 _________________________

                                        No. 00-41117
                                   SUMMARY CALENDAR
                                 __________________________

                               UNITED STATES OF AMERICA,

                                                                                Plaintiff-Appellee,

                                                v.

                                JUAN FIGUEROA-CARBAJAL

                                                                             Defendant-Appellant.

______________________________________________________________________________

                          Appeal from the United States District Court,
                                   Southern District of Texas
                                  USDC No. B-00-CR-184-1

______________________________________________________________________________
                                November 7, 2001

Before REYNALDO G. GARZA, SMITH, and PARKER, Circuit Judges.

PER CURIAM:1

       Juan Figueroa-Carbajal is a Mexican citizen who was deported from the United States

following his conviction for conspiracy to deliver marijuana, an “aggravated felony” for the

purposes of 8 U.S.C. § 1326. Figueroa-Carbajal never obtained the requisite permission to


       1
        Pursuant to 5th Cir. R. 47.5, this Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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.

                                                1
reenter the United States. In April of 2000, however, INS agents approached Figueroa-Carbajal

at a Harlingen, Texas airport. When Figueroa-Carbajal displayed false identification, he was

arrested.

       On April 25, 2000, Figueroa-Carbajal was indicted and charged with being an alien found

in the Unites States without the Attorney General’s permission after having been previously

deported, in violation 8 U.S.C. § 1326(a). Two months later, on June 27, Figueroa-Carbajal

pleaded guilty to the sole charge levied against him. On September 7, he was sentenced to 46

months in prison to be followed by a three year term of supervised release.

       Figueroa-Carbajal raises a number of issues on appeal, the first being whether he has

waived his right to appeal. Figueroa-Carbajal contends that his agreement with the district court’s

statement that he was waiving his right to appeal his sentence did not serve to deprive him of his

right to appeal. As part of a plea agreement, a defendant may be required to waive any rights to

appeal. See United States v. Melancon, 972 F.2d 566, 567 (5th Cir. 1992). Figueroa-Carbajal,

however, pleaded guilty without the benefit of a plea agreement, and the government concedes

that he has not waived his right to appeal.

       Figueroa avers that his indictment was deficient because it failed to allege that he had

committed a prior aggravated felony, and he contends that this is an element of the offense and

not merely a sentencing factor. An indictment must allege every element of the crime charged.

See United States v. Fitzgerald, 89 F.3d 218, 221 (5th Cir. 1996). Because the sufficiency of an

indictment is a question of law, this court reviews such a question de novo.

       The Supreme Court has held that the commission of an aggravated felony prior to

deportation is a sentencing factor and not an element of the offense and thus does not need to be


                                                 2
alleged in the indictment. See Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Figueroa-Carbajal’s indictment alleged that he was an alien who, having been previously “denied

admission, excluded, deported, and removed, knowingly and unlawfully was present in Cameron

County, Texas...having not obtained the consent of the Attorney General of the United States

for..admission into the United States.” R.1, 42. As Figueroa-Carbajal was indicted subsequent to

the 1997 amendment of 8 U.S.C. § 1326 that dispensed with the requirement of alleging that the

defendant had been arrested, all the elements of the offense were alleged in the indictment.

    Figueroa-Carbajal next argues that there is an insufficient factual basis supporting his guilty

plea because the trial court did not elicit the fact of the prior aggravated conviction. This court

has held that if “sufficiently specific, an indictment or information can be used as the sole source

of the factual basis for a guilty plea.” United States v. Adams, 961 F.2d 505, 509 (5th Cir. 1992).

Because this indictment, as discussed above, adequately alleged each element of the offense, the

district court’s inquiry into the indictment at rearraignment was sufficient to establish the factual

basis.

         Lastly, Figueroa-Carbajal argues that he is being confined illegally because the judgment

of conviction stated neither that he was found guilty by the district court nor of what crime the

court found him guilty. This argument is frivolous. The judgment, signed by the presiding judge,

was the standard form used by district courts throughout the circuit and reflected that Figueroa-

Carbajal pleaded guilty to the indictment’s only count on June 27, 2000.

         As such, the judgment of the district court is AFFIRMED.




                                                  3
