                       UNITED STATES COURT OF APPEALS
                            For the Fifth Circuit



                                    No. 92-2706



                           UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,


                                      VERSUS


                           JOSE BLAS VASQUEZ-OLVERA,

                                                           Defendant-Appellant.




              Appeal from the United States District Court
                   for the Southern District of Texas
                                August 24, 1993


Before KING, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

                      I.   FACTS AND PROCEDURAL HISTORY

     Jose Blas Vasquez-Olvera (Vasquez-Olvera), a Mexican national,

was convicted by a state court in Houston, Texas on April 16, 1990

of the felony offense of delivery of cocaine and was sentenced to

five years in state prison. Approximately six months later, he was

released   to   the    United   States     Immigration      and   Naturalization

Service (INS), which deported him to Mexico.                 Approximately one

month after being deported, the police again arrested Vasquez-

Olvera   in    Houston,     Texas    for   delivery   of    cocaine.     He   was

subsequently convicted in state court of that offense and sentenced
to 10 years in state prison.      The State of Texas then released

Vasquez-Olvera on parole to a detainer for the federal charge that

is the basis of the present case.         An indictment was returned

against Vasquez-Olvera on April 8, 1992 in the United States

District Court for the Southern District of Texas, charging that on

December 6, 1990, Vasquez-Olvera, an alien who had previously been

deported, knowingly and unlawfully was found in the United States

without having obtained the consent of the Attorney General for

reapplication for admission to the United States, in violation of

8 U.S.C. § 1326.   On June 8, 1992, Vasquez-Olvera pleaded guilty to

the charges contained in the indictment, and the district court

sentenced him to 78 months imprisonment, to be followed by a five

year term of supervised release.       During Vasquez-Olvera's guilty

plea hearing, pursuant to Rule 11, the court advised him that he

could be sentenced up to 15 years in prison.1


                           II.   DISCUSSION

     Title 8 U.S.C. § 1326 provides:

     (a) Subject to subsection (b) of this section, any alien

     who--

     (1) has been arrested and deported or excluded and
     deported, and thereafter


 1
     The court stated:
           [p]unishment is up to 15 years in prison, a
           quarter of a million dollar fine, and a five
           year supervised release.      The effect of
           supervised release means, that if you violate
           the terms of your release, you can be sent up
           to five years more in prison. So, you have
           the potential of having 20 years in prison.

                                   2
     (2) enters, attempts to enter, or is at anytime found in,
     the United States, unless (A) prior to his reembarkation
     at a place outside the United States or his application
     for admission from foreign contiguous territory, the
     Attorney General has expressly consented to such alien's
     reapplying for admission; or (B) with respect to an alien
     previously excluded and deported, unless such alien shall
     establish that he was not required to obtain such advance
     consent under this chapter or any prior Act,
     shall be fined under Title 18, or imprisoned not more than two
     years, or both.

     (b) Notwithstanding subsection (a) of this section, in
     the case of any alien described in such subsection--

     (1) whose deportation was subsequent to a conviction for
     commission of a felony (other than an aggravated felony),
     such alien shall be fined under Title 18, imprisoned not
     more than 5 years, or both; or

     (2) whose deportation was subsequent to a conviction for
     commission of an aggravated felony, such alien shall be
     fined under such Title, imprisoned not more than 15
     years, or both.

8 U.S.C. § 1326

Vasquez-Olvera contends that he was indicted and pleaded guilty to

a charge of reentry after deportation under 8 U.S.C. § 1326(a),

which has a maximum punishment of two years.   However, he contends

the district court erroneously sentenced him under the provisions

of 8 U.S.C. § 1326(b)(2), which provides for a maximum punishment

of 15 years.      Consequently, according to Vasquez-Olvera, the

district court erred in sentencing him to 78 months imprisonment,

and his sentence must be vacated.

     On the other hand, the government contends it was proper for

the district court to sentence Vasquez-Olvera under § 1326(b)(2),

because subsection (b) is a sentence enhancement provision, not an

element of the offense, and therefore it need not notify Vasquez-

Olvera of the prior conviction in the indictment.       See United

                                 3
States v. Lowe, 860 F.2d 1370, 1377-78 (7th Cir. 1988), cert.

denied, 490 U.S. 1005 (1989); United States v. Affleck, 861 F.2d

97, 99 (5th Cir. 1988), cert. denied, 489 U.S. 1058 (1989).2

Vasquez-Olvera, however, contends subsection (b) is a separate

criminal offense, that his prior felony conviction was an element

of that offense, and thus the government is required to charge him

with that element of the offense in the indictment.3     Accordingly,

because the indictment did not charge him with a prior felony

conviction, Vasquez-Olvera contends it was error for the district

court to sentence him under subsection (b).      See United States v.

Davis, 801 F.2d 754 (5th Cir. 1986).

         In sum, the issue narrowly framed is this: whether subsection

(b) is a separate criminal offense or a sentence-enhancement

provision?

         This court in United States v. Davis, 801 F.2d 754 (5th Cir.

1986), enumerated four factors that are helpful in determining

whether Congress intended a statutory provision to create an

independent federal offense or a sentence-enhancement provision.


     2
   In Affleck, the court held "[i]t was unnecessary for the jury
to make any determination regarding the prior convictions of
Affleck, since that was not an element of the offense for which he
was indicted and convicted."
 3
   Rule 7 of the Federal Rules of Criminal Procedure requires that
the indictment be a "plain, concise, and definite written statement
of the essential facts constituting the offense charged." Fed. R.
Crim. P. 7(c)(1). See Hamling v. United States, 418 U.S. 87, 117
(1974) ([A]n indictment is sufficient if it, first, contains the
elements of the offense charged and fairly informs a defendant of
the charge against him which he must defend, and, second, enables
him to plead an acquittal or conviction in bar of future
prosecutions for the same offense."))

                                    4
Those factors are: (1) whether the statute predicates punishment

upon conviction under another section, (2) whether the statute

multiplies the penalty received under another section, (3) whether

the statute provides guidelines for the sentencing hearing, and (4)

whether the statute is titled as a sentencing provision.     Davis,

801 F.2d at 756;      United States v. Jackson, 891 F.2d 1151, 1152

(5th Cir. 1989), cert. denied, 496 U.S. 939 (1990).

     In our view, application of these factors indicates that

subsection (b) is a sentence enhancement provision.   Initially, we

recognize that subsection (a) contains the elements of the offense

of unlawful reentry.       Those elements are arrest, deportation,

reentry to the United States, and lack of the attorney general's

consent to reentry.    See United States v. Campos-Asencio, 822 F.2d

506, 508 (5th Cir. 1987).      Only after proof of the elements in

subsection (a), do the punishment provisions for special types of

offenders in subsection (b) apply.      Therefore, the first Davis

factor, which is the foremost feature of a sentence enhancement

provision, is met.

     Second, subsection (b)(1) raises the two year maximum penalty

for reentry set forth in subsection (a) to 5 years upon proof that

a deportation is subsequent to a felony other than an aggravated

felony. Subsection (b)(2) raises the maximum penalty to 15 years

for a deportation subsequent to an aggravated felony.     While the

penalty provisions in subsection (b) may not in a strict sense of

the word be multipliers of the penalty provided for in subsection




                                  5
(a), they are directly tied to it.          This satisfies the second

factor of the Davis test.      See Jackson, 891 F.2d at 1152.

     Third, Congress titled Section 1326 "[r]eentry of deported

aliens;     criminal   penalties   for   reentry   of   certain   deported

aliens."4    That title indicates that section 1326 provides for one

crime--reentry of deported aliens--, but harsher penalties for

certain classes of deported aliens--those committing felonies.

Therefore, the fourth Davis factor is also satisfied.

     We do not consider the fact that Subsection (b) does not

satisfy the third Davis factor by providing guidelines for the

sentencing hearing to be dispositive of its status as a sentence

enhancement provision.       Subsection (b) meets three of the four

Davis factors and has enough of the common traits of a sentence

enhancement provision for us to conclude that Congress intended for

it to be a sentence enhancement provision.

     Another reason, we believe that section 1326(b) is a sentence

enhancement provision is because the plain language of the statute

so indicates. In drafting the introductory language of subsection

(a) and subsection (b), Congress intertwined the two subsections.

The introductory language of subsection (a) states "subject to

subsection (b) of this section," and the introductory language of

subsection (b), states "notwithstanding subsection (a) of this


    4
       Congress added subsection (b) and the initial line in
subsection (a) to section 1326 in an amendment that was part of the
Anti-Drug Abuse Act of 1988, 102 Stat. 4181, 4471. Congress titled
the amendment "criminal penalties for reentry of certain deported
aliens," which was added to the old title, "reentry of deported
aliens."

                                     6
section."   It is highly unlikely that Congress would structure the

statute in such a way that subsection (b) is dependant on elements

of subsection (a), if it intended for subsection (b) to be a

separate criminal offense.          We interpret section 1326 to provide

for one criminal offense, reentry of a deported alien, and to

provide in subsection (b) stiffer penalties for those who illegally

reenter after being convicted of a felony or an aggravated felony.5

     Vasquez-Olvera urges us to follow the lead of the Ninth

Circuit,    which     in    three   cases     has   previously   decided    that

subsection (b) is not a sentence-enhancement provision, but is a

separate criminal offense.

     In United States v. Arias-Granados, 941 F.2d 996 (9th Cir.

1991), the defendants were charged with violating 8 U.S.C. §

1326(b)(1), re-entry following deportation for a felony conviction,

which provided for a maximum punishment of five years.                       The

defendants then pleaded guilty under a plea agreement to violating

one count of 8 U.S.C. § 1326(a), simple reentry after deportation,

an offense with a maximum penalty of two years.              Id. at 997.     The

court noted that two years was the maximum sentence that could be

imposed    upon     the    defendants   and     stated,   "[a]   prior     felony

conviction is an element of the crime with which appellants were




 5
   No Senate or House Committee Report was submitted with the 1988
amendment to section 1326. See 1988 U.S. Code Cong. and Adm. News
5937. The government contends this alone suggests that Congress
was creating a sentence enhancement provision, not a separate
criminal offense. We do not interpret this lack of legislative
history to be indicative of Congress's intent.

                                        7
charged, 8 U.S.C. § 1326(b)(1), but is not an element of the crime

to which they pleaded guilty, 8 U.S.C. § 1326(a)."                Id. at 998-99.

       Shortly thereafter, in United States v. Gonzalez-Medina, 976

F.2d   570    (9th   Cir.    1992),   the     defendants   were    charged   with

illegally reentering the United States following deportation as

convicted felons. At trial, the defendants were convicted, but the

government did not offer evidence that the defendants had prior

felony convictions.         Id. at 572.       The district court then imposed

sentences in excess of two years.                Id.   On appeal, the Ninth

Circuit reversed the district court and held that subsections (a)

and (b) constitute separate criminal offenses, and vacated the

sentences as exceeding the lawful maximum.              Id. at 573.

       With the exception of United States v. Campos-Martinez, 976

F.2d 589 (9th Cir. 1992), the Ninth Circuit has not given its

rationale for holding that subsection (b) is a separate criminal

offense.

       In Campos-Martinez, the defendant, who had previously been

deported subsequent to a felony conviction, was indicted and

pleaded guilty under section 1326 to illegal reentry after having

been deported.       The district court sentenced him to thirty months

in prison, holding that he had pleaded guilty to violating section

1326 generally, and that he could be sentenced under subsection

(b)(1).      Id. at 590.      On appeal, the Ninth Circuit vacated the

defendant's sentence and remanded for resentencing, holding that

subsection (b) was a separate criminal offense.              Id. at 591-92.




                                          8
          In reaching its decision in Campos-Martinez, the court relied

almost exclusively on case law interpreting section 1325(a), the

alien illegal entry statute, which it found to be an analogous

statute.6

          We believe the two sections are too different for Congress to

have intended for them to be interpreted similarly.                  Section

1325(a) provides that the offense of illegal entry is a misdemeanor

with a maximum punishment of six months, while a subsequent illegal

entry after a previous conviction for violating section 1325(a) is

a felony with a maximum punishment of two years.7                 Therefore,

having       a   prior   conviction   under   section   1325(a)   subjects   a

defendant to more than a simple sentence enhancement; instead, it




 6
  The court relied on United States v. Arambula-Alvarado, 677 F.2d
51 (9th Cir. 1982), and United States v. Arriaga-Segura, 743 F.2d
1434 (9th Cir. 1984), both of which interpreted section 1325(a).
     7
         Section 1325(a) provides:

                 [a]ny alien who (1) enters or attempts to
                 enter the United States at any time or place
                 other than as designated by immigration
                 officers, or (2) eludes examination or
                 inspection by immigration officers, or (3)
                 attempts to enter or obtains entry to the
                 United States by a willfully false or
                 misleading representation or the willful
                 concealment of a material fact, shall, for the
                 first commission of any such offense, be fined
                 under Title 18 or imprisoned not more than six
                 months, or both, and, for a subsequent
                 commission of any such offense, be fined under
                 Title 18, or imprisoned not more than two
                 years, or both.

8 U.S.C. § 1325(a).

                                        9
subjects that defendant to an entirely different class of offense,

a felony.8

        In conclusion, the construction of section 1325(a) and section

1326 are quite different, and there is nothing to suggest that

Congress patterned section 1326 in a similar vein to that of

section        1325(a).            We     therefore          decline         to    follow        the      Ninth

Circuit's prior case law in this regard.

                                           III.      CONCLUSION

        For the foregoing reasons, the judgment of the district court

is AFFIRMED.

KING, Circuit Judge, dissenting:

        Because I believe that the majority incorrectly classifies 8

U.S.C. § 1326(b) as a sentencing enhancement statute rather than a

separate offense, I respectfully dissent.                                    Rather than accepting

the majority's reasoning, I adopt the analysis of two other courts

that have addressed this precise issue.                                      See United States v.

Campos-Martinez, 976 F.2d 589, 590-92 (9th Cir. 1992); United

States v. Vieira-Candelario, 811 F. Supp. 762, 765-68 (D.R.I.

1993).9       In those two cases, the courts held that § 1326(b) created



   8
    Further, we disagree with the premise that the Ninth Circuit
used in Campos-Martinez to reach its conclusion, which is that the
portion of section 1325(a) that provides the punishment for a
subsequent illegal entry is a sentence enhancement provision. In
our view, section 1325(a) has many of the common attributes of a
sentence enhancement provision and should be interpreted as a
sentence enhancement provision.
   9
    I observe that in a recent case the First Circuit expressly noted this issue but saw no need to resolve it. See
United States v. Zapata, ___ F.2d ___, 1993 U.S. App. LEXIS 17992 at *15 n.5 (1st Cir. July 19, 1993) (citing
Vieira-Candelario, supra).
c:br:opin:92-2706p.mm                                   10
a separate offense, which requires the Government to allege and

prove beyond a reasonable doubt all of the elements of that offense

in the indictment before a defendant may be sentenced under §

1326(b)'s separate penalties.10

          In the instant case, the indictment charged Vasquez-Olvera as

follows:

           On or about December 6, 1990, . . . JOSE BLAS VASQUEZ-
           OLVERA, . . . an alien who had previously been deported,
           knowingly and unlawfully was found in the United States
           at Harris County, Texas, the said defendant having not
           obtained the consent of the Attorney General of the
           United States for reapplication by the defendant for
           readmission into the United States.

The indictment then specified: "[v]iolation: Title 8, United States

Code, Section 1326."

              As the majority correctly observes, what is at issue is

whether the additional matter in subsection (b) of § 1326 -- the

requirement that the alien must have been deported "subsequent to

a conviction" of a felony or aggravated felony -- is a separate

"element," thus creating a separate offense from § 1326(a), or is

simply a sentencing enhancement factor applicable after conviction

under § 1326(a).11                     Vasquez-Olvera argues that because he was

indicted for,                and     pled      guilty          to,   nothing        more      than      "simple

reentry" after deportation, the district court unlawfully sentenced

him under § 1326(b) rather than under § 1326(a).                                          I agree.

   10
      It is well-established that the Government must include all elements of an offense in the indictment and
prove each element beyond a reasonable doubt. See Hamling v. United States, 418 U.S. 87, 117 (1974); see also
Jill C. Rafaloff, Note, The Armed Career Criminal Act: Sentence Enhancement Statute or New
Offense?, 56 FORDHAM L. REV. 1085, 1087 & nn. 10-13 (1988) (citing cases).
   11
        See Majority Opinion, slip op., at pp. 2-3, ___ F.2d at ___, for a full quotation of subsections (a) and (b).

c:br:opin:92-2706p.mm                                     11
               As the majority correctly observes, in this circuit, the

leading case on distinguishing the two types of statutes is United

States v. Davis, 801 F.2d 754 (5th Cir. 1986).                                 In Davis, we noted

a number of factors that are helpful in identifying a sentencing

enhancement statute:

              i) whether the statute "impose[s] an increased punishment
              for those convicted under another statutory provision";

              ii) whether the statute's penalty is simply                                          a
              "multiplier" of another statute's penalty provision;

              iii) whether the statute is titled as a "sentencing" or
              "penalty" provision; and

              iv) whether there are separate procedures for sentencing
              under the statute.12


Davis, 801 F.2d at 756.                   The Davis court, in keeping with general

principles           of    statutory         interpretation,              also      held      that      the

legislative history may be consulted to determine Congress' intent

where the language of the statute is ambiguous.                                  Id.     The majority

concludes that three of the four Davis factors apply -- (i)-(iii)

-- and thus holds that Vasquez-Olvera was properly sentenced under

§ 1326(b).

               I believed that the majority errs in holding that the first

three Davis factors are clearly applicable.                                  The majority states

that the first factor applies because § 1326(b) simply refers back

to        §    1326(a)    --   that      is,     only      after      the     three      elements         of

subsection (a) are proven may an enhanced sentence possible under


     12
       Davis adopted those four factors from the United States Supreme Court's decision in Garrett v. United
States, 471 U.S. 773 (1985). Garrett involved the analogous issue of distinguishing between a separate offense
or lesser-included offense for purposes of the Double Jeopardy Clause.
c:br:opin:92-2706p.mm                                12
subsection (b) be imposed in the case of an alien whose original

deportation was "subsequent to the commission of a felony."                                                    In

support of its position, the majority points to the first clause of

each      subsection,            which       read,        respectively,             "(a)       Subject         to

subsection (b) of this section . . . " and "(b) Notwithstanding

subsection (a) of this section . . ." (emphasis added).                                                      The

majority states that Congress "intertwined" the two subsections,

suggesting that subsection (b) is dependent on subsection (a).

Majority Opinion, slip op. at p.6, ___ F.2d at ___.

           I believe that, while the majority's interpretation is a

permissible             one,        there         is         another,         equally          permissible

interpretation of the statute.                         I believe that the drafters of the

1988      amendments           to     §     132613      could        have      intended          simply        to

incorporate the three elements of § 1326(a) into § 1326(b) and

simply add the additional element regarding a prior conviction of

a felony or aggravated felony.14                              See Vieira-Candelario, 811 F.

Supp. at 767.            In this regard, I observe that subsection (b) states

that "in the case of any alien described in" subsection (b).                                                   It

does not say "in the case of any alien convicted of" the offense

set forth in subsection (a).                        I further believe that the fact that

the use of the phrase "[n]otwithstanding subsection (a)," if


  13
    In 1988, Congress amended § 1326 by adding what is presently in subsection (b) and bifurcating the statute.
See Majority Opinion, slip op. at 6 n.4, ___ F.2d at ___ n.4.
   14
       Under the plain language of § 1326(a), the elements of that offense are: i) an arrest and deportation or
exclusion and deportation, ii) reentry or attempted reentry into the United States, and iii) the absence of consent
by the United States Attorney General. United States v. Campos-Asencio, 822 F.2d 506, 508 (5th Cir. 1987)
(interpeting § 1326 prior to its bifurcation into subsections (a) and (b), when the entire statute was what is
presently subsection (a)).
c:br:opin:92-2706p.mm                                   13
anything,          argues        in    favor       of        holding      that      the      drafters         of

subsection (b) intended it to be a separate offense.15

         As for the second Davis factor, the majority holds that the

enhanced sentencing range in subsection (b) may be interpreted to

be "multipliers" of the sentencing range prescribed in subsection

(a).      See Majority Opinion, slip op. at                            pp.5-6, ___ F.2d at ___.

I disagree.              Common sense suggests that a "multiplier" in the

context of a sentencing enhancement statute generally refers to an

increase by two or three fold at the most.                                 However, the potential

for such an draconian increase under subsection (b) -- from a

maximum of two to fifteen years, i.e., over a seven-fold increase

-- suggests that a separate offense was intended.                                       Cf. McMillan v.

Pennsylvania,            477      U.S.      79    (1986).            In     McMillian,          the      Court

suggested that in cases where a certain sentencing fact is a "tail

which wags the dog of the substantive offense" in terms of the

severity of the sentence, the reasonable-doubt standard of proof

rather than preponderance standard -- the latter typically being

used during the sentencing phase -- should be required because that

sentencing fact is in effect an element of the offense.                                         Id. at 88.

        The majority believes that the third Davis factor -- whether

the     title       of     the     statute        suggests          that      it    is     a    sentencing

enhancement             provision         --     also        has    been      established            by     the

Government. The same argument was made by the Government in United

States v. Vieira-Candelario, 811 F. Supp. 762, 767 (D.R.I. 1993).

  15
     Although the use of the phrase "subject to" in subsection (b) admittedly could be interpreted to suggest that
subsection (b) is a penalty enhancement, the ambiguity of the statute as a whole requires the application of the
"rule of lenity," discussed infra.
c:br:opin:92-2706p.mm                                   14
In a persuasive opinion, the court rejected the Government's

argument        by      holding    that    the    statute's    title    "is,    at   best,

ambiguous."             Id.    I agree.    Section 1326 is entitled, "Reentry of

deported alien; criminal penalties for reentry of certain deported

aliens."        The majority accepts the Government's argument that the

single crime provided for -- "[r]eentry of deported aliens" --

means that the statute's drafters must have intended subsection (b)

to only be a penalty enhancement provision.                        Majority Opinion, at

p.6, ___ F.2d at ___.                While again I agree that is certainly a

permissible interpretation of the statute's title, I believe that

the bifurcated structure of § 1326 and the apparent incorporation

of subsection (a)'s elements into subsection (b) also suggests that

Congress intended the broad title of offense -- "[r]eentry of

deported aliens" -- to apply to both subsections (a) and (b).

Moreover, the majority ignores the fact that Congress could have

easily titled subsection (b) as a separate penalty provision, which

it chose not to do; the failure to do so is noteworthy.                         Instead,

it     apparently             incorporated    subsection       (a)'s     elements      into

subsection (b), suggesting that subsection (b) was intended to be

independent of subsection (a).

        Thus, having applied the Davis factors, it is quite apparent

that the language and structure of § 1326 provide no definitive

answer to whether subsection (b) was intended to be a penalty

enhancement statute or a separate offense.                     As the majority notes,

there      is    no      legislative      history     to   which   we   could   turn   for



c:br:opin:92-2706p.mm                            15
clarification of an ambiguous statute.16                                 Thus, we are faced with

a        classic    case       where       the     longstanding             "rule       of     lenity"         is

appropriately             applied.            Simply         put,     that      rule      provides         that

"ambiguities in criminal statutes must be resolved in favor of

lenity" for the criminal defendant.                              United States v. Batchelder,

442 U.S. 114, 121 (1979); Ladner v. United States, 358 U.S. 169,

177 (1958) ("Neither the wording of the statute nor its legislative

history points clearly to either [of two permissible] meaning[s].

In that circumstance, this Court applies a policy of lenity and

adopts the less harsh meaning."); see also United States v. Campos-

Serrano, 404 U.S. 293, 297 (1971); United States v. Wiltberger, 18

U.S. 76, 95 (1820); United States v. Abreu, 962 F.2d 1447, 1450-51

(10th Cir. 1992) (en banc) (discussing Supreme Court authority on

"rule of lenity"); Annotation, 62 L.Ed. 2d 827.

             Because I believe that this is an appropriate case for

application of the "rule of lenity" to an ambiguous statute with no

clarifying legislative history, I respectfully dissent.                                               I would

vacate Vasquez-Olvera's sentence and remand with instructions that

the district court must sentence him only under 8 U.S.C. § 1326(a).


    16
      I agree with the Ninth Circuit's view that the fact that a previous conviction is a separate element under 8
U.S.C. § 1325 -- § 1326's sister statute regarding illegal entry of aliens -- is some indication that § 1326(b) was
intended to be a separate offense by the statute's drafters. See United States v. Campos-Martinez, 976 F.2d 589,
591 (9th Cir. 1992). It is well-established that a court may interpret an ambiguous statute by comparison to an
analogous statute. See United States v. Abreu, 962 F.2d 1447, 1451 (10th Cir. 1992) (en banc) (citing United
States v. American Trucking Ass'ns, 310 U.S. 534, 543-44 (1940)).
    In a footnote, the majority, with no discussion, states that it does not believe that a prior conviction is a
separate element under § 1325. See Majority Opinion, slip op., at p.10 n.8, ___ F.2d ___. My research reveals
that the only other authority regarding this issue is a series of Ninth Circuit cases, which hold that a prior
conviction is a separate element under § 1325. See United States v. Equihua-Juarez, 851 F.2d 1222, 1226 (9th
Cir. 1988) (citing cases). Without going into an extended discussion here, my application of the Davis factors
to § 1325 indicates that the Ninth Circuit's interpretation is correct.
c:br:opin:92-2706p.mm                                   16
