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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m. 99-40881
Summary Calendar
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JESUS TOVIAS-MARROQUIN,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
July 11, 2000
Before SMITH, BARKSDALE, and
offense." He also argues that the court erred
PARKER, Circuit Judges.
in imposing a fine. Finding no error, we
affirm.
JERRY E. SMITH, Circuit Judge:
I.
Jesus Tovias-Marroquin ("Tovias") was
Tovias was convicted of possession with
convicted of illegal entry after deportation in
intent to distribute marihuana, then jailed and
violation of 8 U.S.C. § 1326(a) and (b). He
later deported. In 1999, he reentered the Unit-
claims that the crime of which he was con-
ed States without the requisite permission to
victed cannot stand under the Due Process
do so, and was again arrested.
Clause of the Fourteenth Amendment because
it constitutes, as defined in the indictment and
Tovias was indicted under a statute
the district court's jury instructions, a "status
providing that

a conviction for commission of an
(a) . . . any alien whoSS
aggravated felony, such alien shall be
fined under such Title, imprisoned not
(1) has been denied admission,
more than 20 years, or both. . . .
excluded, deported, or removed or has
departed the United States while an or-
8 U.S.C. § 1326. The indictment charged that
der of exclusion, deportation, or remov-
Tovias, "an alien who had previously been
al is outstanding, and thereafter
denied admission, excluded, deported, and
removed, knowingly and unlawfully was
(2) enters, attempts to enter, or is at
present in the United States[,] . . . the said
any time found in, the United States, un-
defendant having not obtained . . . consent . .
less (A) prior to his reembarkation at a
. for admission into the United States."
place outside the United States or his
application for admission from foreign
II.
contiguous territory, the Attorney
A.
General has expressly consented to such
Tovias challenges his conviction on the
alien's reapplying for admission; or
ground that § 1326 establishes a "status
(B) with respect to an alien previously
offense"SSthat it would punish him for who he
denied admission and removed, unless
is rather than what he has done, and that it
such alien shall establish that he was not
therefore violates his due process rights.
required to obtain such advance consent
Although we have not dealt specifically with
under this chapter or any prior Act,
this argument, the court in United States v.
Ayala, 35 F.3d 423, 425-26 (9th Cir. 1994),
shall be fined under Title 18, or imprisoned
did so, reasoning as follows:
not more than 2 years, or both.
Ayala argues that the "found in" provision
(b) Criminal penalties for reentry of
of § 1326 impermissibly punishes aliens for
certain removed aliens
their "status" of being found in the United
States. We reject the argument.
Notwithstanding subsection (a) of this
section, in the case of any alien de-
Ayala's reliance on two Supreme Court
scribed in such subsectionSS
decisions, Robinson v. California, 370 U.S.
660 (1962) and Lambert v. California, 355
(1) whose removal was subsequent to
U.S. 225 (1957), is misplaced. In
a conviction for commission of three or
Robinson, the Court held that a statute that
more misdemeanors involving drugs,
criminalized the status of being addicted to
crimes against the person, or both, or a
narcotics, "even though [the defendant] . . .
felony (other than an aggravated felony),
never touched any narcotic drug within the
such alien shall be fined under Title 18,
State or [had] been guilty of any irregular
imprisoned not more than 10 years, or
behavior there," violated the Eighth
both;
Amendment. 370 U.S. at 667. The Su-
preme Court has subsequently limited the
(2) whose removal was subsequent to
applicability of Robinson to crimes that do
2

not involve an actus reus:
the statute, but otherwise the sameSSand fail
for the same reasons. We adopt the analysis
The entire thrust of Robinson's
set forth in Ayala and find no merit to Tovias's
interpretation of the [Eighth
claim that he was charged with a status
Amendment] is that criminal penalties
offense.
may be inflicted only if the accused has
committed some act, has engaged in
B.
some behavior, which society has an
In a related matter, Tovias argues that the
interest in preventing, or perhaps in
district court abused its discretion in failing to
historical common law terms, has
charge the jury that, to convict, it must find
committed some actus reus.
that he had "knowingly" re-entered the
country. See United States v. Trevino-
Powell v. Texas, 392 U.S. 514, 533 (1968)
Martinez, 86 F.3d 65, 67 (5th Cir. 1996)
(plurality opinion of Marshall, J.)
(holding that we review the refusal to provide
(upholding statute criminalizing being
a requested jury instruction for abuse of
drunk while in public); see also id. at 544
discretion).
(Black, J., concurring). A conviction under
§ 1326 for being "found in" the United
The district court abuses its discretion
States necessarily requires that a defendant
when it declines a proffered instruction only
commit an act: he must re-enter the United
if this instruction (1) was a correct
States without permission within five years
statement of the law, (2) was not
after being deported.
substantially covered in the charge as a
whole, and (3) concerned an important
Lambert involved a municipal ordinance
point in the trial such that the failure to
that made it a criminal offense for a person
instruct the jury on the issue seriously
having a previous felony conviction to be
impaired the defendant's ability to present
present in Los Angeles without registering
a given defense.
with police. 355 U.S. at 227. The Court
held that due process required "actual
Id. at 67-68. Moreover, "[w]e review claimed
knowledge of the duty to register or proof
deficiencies in a jury charge by looking to the
of the probability of such knowledge and
entire charge as well as the arguments made to
subsequent failure to comply." Id. at 229.
the jury." United States v. Chagra, 807 F.2d
Ayala's reliance on Lambert is misplaced
398, 402 (5th Cir. 1986).
because it is undisputed that Ayala knew it
was illegal to re-enter the United States
The government and Tovias informed the
after his deportation.
jury that, to convict, it must find that Tovias
was knowingly in the United States; the jury,
Id. (ellipses in original, some internal citation
while deliberating, had a copy of the
information omitted).
indictment, which explicated the same mens
rea. The jury was, therefore, competently in-
Tovias's argument s are materially
structed of the mens rea requirement Tovias
similarSSaimed at the sufficiency of the
desired.
indictment rather than the constitutionality of
3

II.
Tovias asserts that the court committed clear
error in fining him, although he concedes that
the $10,000 fine was within the sentencing-
guideline range. Imposition of a fine is
appropriate unless the defendant establishes
that he will be unable to pay. See United
States v. Fair, 979 F.2d 1037, 1040 (5th Cir.
1992). The defendant has the burden of
presenting evidence of inability to pay. Id. at
1041; United States v. Leal, 74 F.3d 600, 608
(5th Cir. 1996).
Tovias refused to sign a personal financial
statement, a consent and authorization for ac-
cess to financial records, or forms swearing
that he lacked assets and had no appreciable
net worth. He therefore willfully refused to
carry his burden, and failed thereby to deny the
court the opportunity to levy a fine.
AFFIRMED.
4