IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20738
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE LUIS GOMEZ-ELVIR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-309-1
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February 15, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Jorge Luis Gomez-Elvir (“Gomez”) appeals following a guilty
plea conviction for illegal reentry after deportation, a
violation of 8 U.S.C. § 1326. Gomez was sentenced pursuant to 8
U.S.C. § 1326(b)(2) as an alien previously deported after an
aggravated felony.
Gomez 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). Gomez acknowledges that his argument
*
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that this opinion should not be published and is not precedent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. 00-20738
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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). Gomez 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).
Gomez 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 Gomez did not challenge his indictment in the
district court, his indictment is reviewed under a standard of
“maximum liberality.” See id. at 236. Gomez’ indictment is
nearly identical to the indictment found sufficient in Guzman.
See id. at 239, n.13. Gomez’ indictment lists every statutorily
required element of the offense, adequately informs him of the
charge, and fairly imports that his reentry was a voluntary act
in view of the allegation that he had been deported and removed
No. 00-20738
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from the United States and was present without having first
obtained the Attorney General’s consent. See id. at 239.
Therefore, Gomez’ argument that his indictment was defective for
failing to allege any general intent is without merit.
AFFIRMED.