     Case: 17-40620       Document: 00514414272         Page: 1    Date Filed: 04/04/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit


                                    No. 17-40620
                                                                                FILED
                                                                             April 4, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JEROME ARISTEDES MARTINEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:15-CR-1070-1


Before REAVLEY, PRADO ∗, and GRAVES, Circuit Judges.
PER CURIAM: ∗∗
       Following a jury trial, Jerome Aristedes Martinez was convicted of
attempted illegal reentry in violation of 8 U.S.C. § 1326. The district court
sentenced him to 33 months of imprisonment and one year of supervised
release. On appeal, Martinez asserts that the district court erred in using the
Fifth Circuit’s pattern jury instruction instead of the Ninth Circuit’s pattern



       ∗
         This opinion was concurred in by Judge Prado prior to his retirement from the court
on April 2, 2018.
       ∗∗
          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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-40620

jury instruction to instruct the jury on the offense elements of attempted illegal
reentry. Specifically, he maintains that attempted illegal reentry is a specific
intent offense, which requires the Government to prove that “‘the defendant
had the conscious desire to reenter the United States without consent.’”
      We ordinarily review “a jury instruction for abuse of discretion, affording
substantial latitude to the district court in describing the law to the jury.”
United States v. Williams, 610 F.3d 271, 285 (5th Cir. 2010). However, we
review de novo “whether the jury instruction misstated an element of the
statutory crime.” United States v. Morales-Palacios, 369 F.3d 442, 445 (5th
Cir. 2004).
      In Morales-Palacios, we held that “for an attempted illegal reentry under
section 1326 specific intent is not an element of the statute.” Id. at 449.
Although Martinez argues that Morales-Palacios was wrongly decided, one
panel of this court may not overrule a decision made by a prior panel “[a]bsent
an intervening Supreme Court or en banc decision or a change in statutory
law.” United States v. Treft, 447 F.3d 421, 425 (5th Cir. 2006). Accordingly,
the district court did not err in denying Martinez’s request to instruct the jury
on the Ninth Circuit’s specific intent requirement for attempted illegal reentry.
      In addition, Martinez argues that the felony and aggravated felony
provisions of § 1326(b)(1) and (b)(2) are unconstitutional because they allow for
an increased statutory maximum sentence without the predicate conviction
being alleged in the indictment and proven beyond a reasonable doubt.
However, he correctly concedes that this argument is foreclosed under
Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 235 (1998). See
United States v. Pineda-Arellano, 492 F.3d 624, 625-26 (5th Cir. 2007).
      Finally, we note that there is a clerical error in the judgment. Martinez
was convicted by the jury of attempted illegal reentry, while the written



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                                  No. 17-40620

judgment states that his offense was “[r]e-entry of a deported alien.”
“[A]ttempted reentry under § 1326 constitutes an offense distinct from either
reentry or being found in the United States under § 1326.” United States v.
Buendia-Rangel, 553 F.3d 378, 379 n.1 (5th Cir. 2008); see § 1326(a)(2); United
States v. Angeles-Mascote, 206 F.3d 529, 531 (5th Cir. 2000).
      Accordingly, the judgment of the district court is AFFIRMED. The case
is REMANDED to the district court for the limited purpose of correcting the
clerical error in the judgment.




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