IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20492
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROGER DAVID ORELLANA-RIVERA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-662-1
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February 15, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Roger David Orellana-Rivera appeals his sentence following a
guilty plea conviction for illegal reentry after deportation, a
violation of 8 U.S.C. § 1326. He was sentenced pursuant to 8
U.S.C. § 1326(b)(2) as an alien previously deported after an
aggravated felony.
Orellana argues that his indictment recited only facts and
elements supporting a charge of “simple reentry” under 8 U.S.C.
§ 1326(a), yet he was sentenced under the more severe provisions
of 8 U.S.C. § 1326(b)(2). Orellana acknowledges that his
*
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that this opinion should not be published and is not precedent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.
No. 00-20492
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argument is foreclosed by the Supreme Court decision in
Almendarez-Torres v. United States, which held that 8 U.S.C.
§ 1326(b) is a sentencing factor and that a prior aggravated
felony triggering the increased penalty need not be alleged in
the indictment. See 523 U.S. 224, 235 (1998). Orellana seeks to
preserve this issue for possible Supreme Court review in light of
Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). However, until
overruled by the Supreme Court, this argument remains foreclosed
by Almendarez-Torres. See United States v. Dabeit, 231 F.3d 979,
984 (5th Cir. 2000). petition for cert. filed, (U.S. Jan. 26,
2001) (No. 00-8299).
Orellana also argues his indictment was defective because it
did not allege any general intent to violate 8 U.S.C. § 1326. An
identical issue recently was addressed in United States v.
Guzman-Ocampo, 236 F.3d 233 (5th Cir. 2000). This court stated
that 8 U.S.C. § 1326 is a general intent offense requiring that
the government show “the defendant had the general intent to
reenter.” Id. at 239. The court explained that this general
intent mens rea “merely requires that a defendant reenter the
country voluntarily.” Id. at 237.
Because Orellana did not challenge his indictment in the
district court, his indictment is reviewed under a standard of
“maximum liberality.” See id. at 236. Orellana’s indictment is
nearly identical to the indictment found sufficient in Guzman.
See id. at 239, n.13. Orellana’s indictment lists every
statutorily required element of the offense, adequately informs
him of the charge, and fairly imports that his reentry was a
No. 00-20492
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voluntary act in view of the allegation that he had been deported
and removed from the United States and was present without having
first obtained the Attorney General’s consent. See id. at 239.
Therefore, Orellana’s argument that his indictment was defective
for failing to allege any general intent is without merit.
AFFIRMED.