Whether the 8 U.S.C. § 1326 Attempted Illegal Reentry mens rea element of 'specific intent' can be restated as simply 'a conscious desire' with no reference at all to intention or purpose

Questions Presented For Review L Whether the 8 U.S.C. § 1326 Attempted Illegal Reentry mens rea element of “specific intent” can be restated as simply “a conscious desire” with no reference at all to intention or purpose. The Ninth Circuit in this case, and the district court below it and the indictment, all substituted the phrase “conscious desire” for the mens rea of “specific intent,” entirely omitting “purpose,” “objective” and even “intent.” “Thus, by reciting the specific intent element in terms of “conscious desire,” the magistrate judge fulfilled her duty to inform Flores-Villalvaso of the nature of his illegal reentry charge in compliance with Rule 11(b)(1)(G).” [Emphasis added. ] United States v. Flores-Villalvaso, Nos. 20-10039, 20-10040, 2020 U.S. App. LEXIS 36371, pp.2-3 (9th Cir. Nov. 19, 2020) (memorandum opinion). Specific intent was defined to Mr. FloresVillalvaso, both in the district court and on appeal, as nothing more than a “conscious desire.” II. | Whether Mr. Flores-Villalvaso’s Criminal History Category Of VI was over-represented where his entire criminal history is for the crime of being an illegal alien and whether his total consecutive sentences of 45 months for attempted illegal reentry and for a supervised release violation, which were based on such an overrepresented criminal history, were “sufficient, but not greater than necessary,” as required by 18 U.S.C. § 3553(A). 2