                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 00-10378
                          Summary Calendar



                    UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                  versus

                             IL SOO CHO,

                                                    Defendant-Appellant.



           Appeal from the United States District Court
                for the Northern District of Texas
                        (3:99-CR-328-ALL-L)

                            March 2, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Il Soo Cho (“Cho”) appeals his conviction and sentence,

following a jury trial, for illegal reentry after deportation, a

violation of 8 U.S.C. § 1326.        As an alien previously deported

after an   aggravated   felony,    Cho   was   sentenced   to   71   months’

imprisonment pursuant to 8 U.S.C. § 1326(b)(2).

     Cho first asserts the district court erred by refusing to give

two requested jury instructions: 1) that the jury must find Cho

knew he was not entitled to reenter the United States without first

obtaining the consent of the Attorney General; and 2) that a

     *
      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this opinion should not be published and is not precedent except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.
reasonable mistaken belief he was not required to obtain express

consent of the Attorney General constitutes a complete defense.

The refusal to give a particular instruction is error only if the

instruction    “(1)   was   substantially   correct,   (2)   was   not

substantially covered in the charge delivered to the jury, and (3)

concerned an important issue so that the failure to give it

seriously impaired the defendant’s ability to present a given

defense”.   United States v. Pennington, 20 F.3d 593, 600 (5th Cir.

1994) (citation omitted).     Both of Cho’s arguments fail on the

first prong:   § 1326 does not require proof of specific intent, and

a “reasonable mistake” defense is not available. See United States

v. Trevino-Martinez, 86 F.3d 65, 69 (5th Cir. 1996), cert. denied,

520 U.S. 1105 (1997). Furthermore, Cho concedes that the challenge

is foreclosed by precedent, and is raised solely to preserve it for

possible further review.

     Cho next maintains the district court erred by refusing to

include a jury instruction regarding the voluntariness of his

statements to INS Agents. “[O]nce an issue arises as to the

voluntariness of a confession, the district court should conduct a

voluntariness hearing and give the instruction required by the

statute”.     United States v. Iwegbu, 6 F.3d 272, 274 (5th Cir.

1993); see 18 U.S.C. § 3501(a).       Even if no specific request is

made for a voluntariness hearing, the district court must comply

with the statute sua sponte when the evidence clearly raises a

question of voluntariness.     See Iwegbu, 6 F.3d at 274.    However,

there is no evidence or testimony to suggest that Cho’s statements


                                  2
were not voluntary; Cho did not deny making the statements or raise

any complaint about the circumstances in which they were made. Cho

acknowledges he raises the issue only to preserve it, and that it

will merit reversal only if his previous claim succeeds.

     This court’s decision in United States v. Terrazas-Carrasco,

861 F.2d 93, 95 (5th Cir. 1988), also suggests that, even if it was

error to refuse the instruction, any error was harmless.            In

Terrazas-Carrasco, the court concluded that, even if the district

court erred by refusing to give the requested instruction, “any

such error must be considered harmless beyond a reasonable doubt,

given the other overwhelming evidence of defendant’s guilt”.       See

Terrazas-Carrasco,   861   F.2d   at   95.   Cho   admits   that   the

“overwhelming evidence” of guilt which rendered the errors in

Terrazas-Carrasco harmless included the same kinds of evidence

present in this case.

     Finally, Cho contends that, in view of the recent decision in

Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), his sentence should

be vacated.   Cho notes that his amended indictment removed any

reference to his previous felony convictions and recited only facts

supporting a charge of “simple reentry” under 8 U.S.C. § 1326(a),

yet he was sentenced to a term in excess of that subsection’s two-

year statutory maximum.    Cho acknowledges that this argument is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224

(1998). In Almendarez-Torres, the Supreme Court held that 8 U.S.C.

§ 1326(b) states a sentencing factor, not a separate criminal

offense, and thus the aggravated felony triggering the increased


                                  3
maximum penalty need not be alleged in the indictment nor proved to

a jury beyond a reasonable doubt.    See Almendarez-Torres, 523 U.S.

at 235; Apprendi, 120 S. Ct. at 2363.   Once again, Cho concedes the

issue is foreclosed by Supreme Court precedent and is raised only

to preserve it.



                                                        AFFIRMED




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