                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-4802



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


DAVID MAGANA GARCIA,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:07-cr-00017-FDW)


Submitted:   June 9, 2008                 Decided:   August 5, 2008


Before NIEMEYER and TRAXLER, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Claire J. Rauscher, Executive Director, Steven Slawinski, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           David Magana Garcia appeals his jury conviction and

sixty-three month sentence for attempting to reenter the United

States after being deported for committing an aggravated felony, in

violation of 8 U.S.C. § 1326 (2000).     Garcia claims the district

court erred when it denied his requests to instruct the jury that

attempted illegal reentry is a specific intent crime, and regarding

the mistake of fact and entrapment-by-estoppel defenses.     Garcia

also asserts that the district court violated his constitutional

rights when it enhanced his base offense level by sixteen pursuant

to U.S. Sentencing Guidelines Manual (“USSG”) § 2L1.2(b)(1)(A)

(2006).   Finding no error, we affirm.

           To obtain a conviction under § 1326, the Government only

had to establish that: (i) Garcia was an alien who was previously

arrested and deported; (ii) he reentered or attempted to reenter

the United States voluntarily; and (iii) he failed to secure the

express permission of the Attorney General to return.    See United

States v. Espinoza-Leon, 873 F.2d 743, 746 (4th Cir. 1989); see

also 8 U.S.C. § 1326(a) (2000) (making it unlawful for a deported

alien to enter, attempt to enter, or at any time be found in the

United States without prior approval from the Attorney General).

In refusing to instruct the jury regarding Garcia’s specific intent

or lack thereof, the district court relied on this court’s holding

in Espinoza-Leon, where we explicitly held that “only general


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intent must be proven by the government in order to secure a

conviction under § 1326.”           873 F.2d at 746.       Accordingly, we find

that Garcia was not entitled to specific intent or mistake of fact

jury instructions.

               Additionally, to establish the entrapment-by-estoppel

defense,      Garcia    had    to   establish     that:    (i)   the    Government

affirmatively assured him that his reentry into the United States

was lawful; (ii) he engaged in conduct in reasonable reliance on

the Government’s assurances; and (iii) a criminal prosecution based

on his reentry ensued.          See United States v. Aquino-Chacon, 109

F.3d 936, 938-39 (4th Cir. 1997).                 To be able to assert the

defense, however, a defendant has to show more than “vague or even

contradictory” statements by the government; “he must demonstrate

that there was ‘active misleading’ in the sense that the government

actually told him that the proscribed conduct was permissible.”

Id. at 939 (internal citation omitted).                   Because we find that

Garcia’s evidence failed to establish he was entitled to assert the

entrapment-by-estoppel         defense,      we   conclude   that      he   was    not

entitled to have the jury instructed regarding the defense.

              Although Garcia also asserts that the district court

violated his constitutional rights when it enhanced his Guidelines

range pursuant to USSG § 2L1.2(b)(1)(A) based on prior convictions

not   found    by   a   jury   beyond    a   reasonable    doubt,      Garcia     also

acknowledges that this argument fails under controlling circuit


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precedent.    See United States v. Thompson, 421 F.3d 278, 285-87

(4th Cir. 2005) (holding that where facts are inherent in the

convictions    themselves,   “[n]o   finding   of   fact   by   a   jury   is

necessary”); see also United States v. Cheek, 415 F.3d 349, 352-54

(4th Cir. 2005) (holding that prior convictions used as the basis

for an armed career criminal sentence need not be charged in

indictment or proven beyond a reasonable doubt).           Garcia does not

otherwise argue that his sentence is unreasonable.

            Based on the foregoing, we affirm the district court’s

judgment.     We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                                                    AFFIRMED




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