IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40369
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RENATO CARDENAS-GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-1073-1
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February 15, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Renato Cardenas-Garcia (“Cardenas”) appeals his guilty-plea
conviction for unlawful reentry into the United States following
a prior deportation in violation of 8 U.S.C. § 1326(a) and (b).
For the first time on appeal, Cardenas contends that his
sentencing enhancement under § 1326(b), for having committed an
“aggravated felony” prior to reentry, was unconstitutional
because his indictment failed to allege such prior offense. He
correctly acknowledges that this argument is precluded by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), which
*
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that this opinion should not be published and is not precedent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. 00-40369
-2-
holds that the “aggravated felony” is merely a sentencing factor
that need not be pleaded in the indictment. A more recent
decision cited by Cardenas, Apprendi v. New Jersey, 120 S. Ct.
2348 (2000), does not change this result. See Apprendi, 120 S.
Ct. at 2362-63 (“[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury[.]”).
Cardenas also argues for the first time on appeal that his
indictment was insufficient because it failed to allege general
intent. Because the indictment charged that Cardenas had been
deported or removed and had subsequently been found in the United
States without having obtained the consent of the Attorney
General, the indictment imported that his reentry was voluntary,
and the charge was therefore statutorily sufficient. See United
States v. Guzman-Ocampo, 236 F.3d 233, 239 (5th Cir. 2000).
The judgment of the district court is AFFIRMED.