                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT



                                No. 01-50069
                              Summary Calendar



UNITED STATES OF AMERICA,

            Plaintiff-Appellee,

                                   versus

JOSE CARMELO GONZALEZ-MEZA,

            Defendant-Appellant.



             Appeal from the United States District Court
                   for the Western District of Texas
                        USDC No. W-00-CR-350-ALL

                              November 7, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Jose    Carmelo    Gonzalez-Meza    was   convicted   by   a   jury   of

reentering     the   United   States   illegally   after   deportation     in

violation of 8 U.S.C. §§ 1326(a)(1) & 1326(b)(1)(2).            He appeals

his conviction and sentence on multiple grounds.

     Gonzalez-Meza first argues that his Mirandized statements

should have been suppressed as tainted by his suppressed un-

Mirandized statements.        "Mirandized statements made subsequent to

     *
      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this opinion should not be published and is not precedent except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.
an un-Mirandized statement are not the illegal fruit of the prior

statement unless the prior statement was actually involuntary as

opposed to merely presumed involuntary on the basis that it was

given without the benefit of Miranda warnings."1   Here, the record

does not provide any indication that Gonzalez-Meza's un-Mirandized

statements were involuntary or the product of coercion.2   As such,

there is no need to engage in an attenuation analysis pursuant to

Brown v. Illinois,3 and we conclude the district court did not err

in refusing to suppress the Mirandized statements.4

     We also find that there was sufficient evidence to sustain the

conviction for illegal reentry, with or without the Mirandized

statements.    "Pursuant to the text of § 1326, the government is

required to allege [and prove] only (1) that the defendant was an

alien, (2) that he was 'deported' as that term is contemplated by

the statute, (3) that he subsequently was found within the United

States; and (4) that he did not have the consent of the Attorney

General to reapply for admission."5      In particular, sufficient


     1
         United States v. Garcia Abrego, 141 F.3d 142, 169 (5th Cir.
1998).
     2
         See id.
     3
         422 U.S. 590 (1975).
     4
        See Or. v. Elstad, 470 U.S. 298, 310-11 (1985); United
States v. Barte, 868 F.2d 773, 774 (5th Cir. 1989); United States
v. Basey, 816 F.2d 980, 994 (5th Cir. 1987).
     5
       United States v. Guzman-Ocampo, 236 F.3d 233, 237 n.4 (5th
Cir. 2000), cert. denied, 121 S. Ct. 2600 (2001).

                                  2
documentary evidence established that Gonzalez-Meza had previously

been deported and that he did not have the consent of the Attorney

General to reenter the United States.6             Moreover, Gonzalez-Meza's

properly-admitted, sworn statement provides ample evidence that he

had been previously deported.

     The district court did not abuse its discretion by denying

Gonzalez-Meza   discovery      of   the    audio   recording   of    his   prior

deportation hearing because the recording would not have permitted

Gonzalez-Meza      to   successfully       collaterally   attack     his   prior

deportation order on the basis that his Texas state felony drug

conviction   was    not   an   "aggravated      felony."7      Our    precedent

forecloses any argument that his conviction was not such a felony,

and so he cannot establish that any alleged procedural deficiencies

in his earlier hearing caused him actual prejudice.8           Gonzalez-Meza

was also ineligible for discretionary relief under 8 U.S.C. §

1182(h) because of the quantity of drugs for which he was convicted

in Texas state court.9




     6
        Cf. United States v. Quezeda, 754 F.2d 1190, 1193-95 (5th
Cir. 1985).
     7
        See United States v. Hernandez-Avalos, 251 F.3d 505, 507
(5th Cir.), cert. denied, No. 01-5773, 2001 WL 992061 (U.S. Oct. 1,
2001).
     8
        See id. at 507-08; United States v. Hinojosa-Lopez, 130
F.3d 691, 694 (5th Cir. 1997).
     9
         See 8 U.S.C. § 1182(h).

                                       3
     The district court also did not abuse its discretion in

refusing to exclude testimony that a fingerprint card indicating

that Gonzalez-Meza had a criminal history was found in his INS

Alien File. Even assuming without deciding that the district court

erred in overruling Gonzalez-Meza's Federal Rule of Evidence 404(b)

objection to this evidence, such error would be harmless because

the implication that Gonzalez-Meza had a criminal history did not

have a substantial and injurious effect or influence on the jury's

verdict in light of the other substantial evidence of Gonzalez-

Meza's guilt.10

     We also reject Gonzalez-Meza's argument that the district

court’s decision to admit into evidence his statement that he

illegally reentered the United States in 1998 violated Rule 404(b).

Contrary to Gonzalez-Meza's understanding of section 1326, we have

held that "Section 1326 sets forth a continuing offense," which

"begins at the time the defendant illegally re-enters the country

and does not become complete unless or until the defendant is found

by the INS in the United States."11   Moreover, section 1326 is a

general intent offense, requiring that the government prove that


     10
        See United States v. Polasek, 162 F.3d 878, 886 (5th Cir.
1998); cf. United States v. Torres-Flores, 827 F.2d 1031, 1038 (5th
Cir. 1987) (citing cases where the admission of a "mug shot" which
tended to allude to a criminal record or bad character was harmless
in light of other strong evidence against the defendant).
     11
         United States v. Corro-Balbuena, 187 F.3d 483, 485 (5th
Cir. 1999); see also United States v. Reyes-Nava, 169 F.3d 278, 280
(5th Cir. 1999).

                                4
the defendant voluntarily reentered the United States.12             Under

these circumstances, evidence of Gonzalez-Meza's reentry in 1998

"constituted intrinsic background information and therefore Rule

404(b)'s limits on admissibility of extrinsic acts did not apply."13

For the foregoing reasons, Gonzalez-Meza's conviction is AFFIRMED.

     Gonzalez-Meza's arguments that our decision in Ruiz-Romero v.

Reno14    implicitly   overruled   the   holding   in   United   States   v.

Hinojosa-Lopez15 and that our interpretation of "aggravated felony"

for sentencing purposes violates a fundamental rule of statutory

construction and the rule of lenity are meritless.16        Gonzalez-Meza



     12
        United States v. Berrios-Centeno, 250 F.3d 294, 298-99 (5th
Cir.), cert. denied, No. 01-5535, 2001 WL 914944 (U.S. Oct. 1,
2001).
     13
         United States v. Miranda, 248 F.3d 434, 440 (5th Cir.),
cert. denied, No. 01-6235, 2001 WL 10953457 (U.S. Oct. 15, 2001);
see also United States v. Williams, 900 F.2d 823, 825 (5th Cir.
1990). Of course, the necessary voluntary act to meet the general
intent requirement could also "be inferred by the fact that a
defendant was previously deported . . . and subsequently found in
the United States, without consent." Berrios-Centeno, 250 F.3d at
299 (internal quotation marks omitted).
     14
           205 F.3d 837 (5th Cir. 2000).
     15
           130 F.3d 691 (5th Cir. 1997).
     16
        See United States v. Rivera, 265 F.3d 310 (5th Cir. 2001)
(per curiam) (rejecting a statutory construction and rule of lenity
challenge to Hinojosa-Lopez); Hernandez-Avalos, 251 F.3d at 507-08
(reaffirming Hinojosa-Lopez and rejecting the argument that the
interpretation of "aggravated felony" employed by the Board of
Immigration Appeals is binding on us for sentencing or immigration
purposes); Narvaiz v. Johnson, 134 F.3d 688, 694 (5th Cir. 1998)
(holding that panel decisions cannot overrule prior panel
decisions).

                                     5
now   concedes   this    point   to   the    government   but   seeks   to   be

resentenced pursuant to an amendment to U.S.S.G. § 2L1.2, effective

November 1, 2001.        This amendment is not listed in U.S.S.G. §

1B1.10(c), however, and so affords Gonzalez-Meza no right to seek

relief from the district court under 18 U.S.C. § 3583(c)(2).17

      The district court also did not abuse its discretion by

ordering that Gonzalez-Meza's sentence run consecutive to his state

court sentence for driving while intoxicated. Because, as noted

above, Gonzalez-Meza's section 1326 violation was a continuing

offense begun when he reentered the United States in 1998, and

because a section 1326 violation is not a mere status offense,

U.S.S.G. § 5G1.3(a) authorizes a consecutive sentence in this

case.18

      Finally, relying on our recent decision in United States v.

Rodriguez-Montelongo,19 Gonzalez-Meza raises for the first time in

his reply brief the argument that the district court erred in

refusing    to   grant   a   downward       departure   based   on   cultural

assimilation.    Ordinarily, we will not consider an argument raised




      17
        See U.S.S.G. § 1B1.10(c); United States v. Posada-Rios, 158
F.3d 832, 880 (5th Cir. 1998).
      18
        See U.S.S.G. § 5G1.3(a); United States v. Tovias-Marroquin,
218 F.3d 455, 456-57 (5th Cir.), cert. denied, 531 U.S. 1058
(2000); Corro-Balbuena, 187 F.3d at 485.
      19
           263 F.3d 429 (5th Cir. 2001).

                                       6
for the first time in a reply brief.20   This argument, however, is

without merit at all events.      The district court here did not

simply believe that it did not have authority to grant such a

downward departure, but rather indicated that it would not exercise

its discretion to grant such a departure if it did have the

authority to do so.    Under these circumstances, we cannot review

the district court's refusal to grant a downward departure and so

we dismiss the appeal as to this issue.21    Accordingly, Gonzalez-

Meza's sentence is AFFIRMED.




     20
          Price v. Roark, 256 F.3d 364, 368 n.2 (5th Cir. 2001).
     21
          See United States v. Martinez, 263 F.3d 436, 440 (5th Cir.
2001).

                                  7
