IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40383
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER ALVARO-MONTEJO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-99-CR-1112-ALL
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February 15, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Javier Alvaro-Montejo appeals his guilty-plea conviction and
sentence for illegal 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, Alvaro-Montejo argues that the
felony conviction that resulted in his increased sentence under
8 U.S.C. § 1326(b) was an element of the offense that should have
been charged in the indictment. Alvaro-Montejo acknowledges that
his argument is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998), which holds that the “aggravated
*
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that this opinion should not be published and is not precedent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. 00-40383
-2-
felony” is merely a sentencing factor that need not be pleaded in
the indictment. However, Alvaro-Montejo wishes to preserve the
issue for possible Supreme Court review in the light of Apprendi
v. New Jersey, 120 S. Ct. 2348 (2000). In that case, the Supreme
Court held that “[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[.]” Apprendi, 120
S. Ct. at 2362-63. Apprendi did not overrule Almendarez-Torres.
Id. at 2361-62 & n.15. Accordingly, Alvaro-Montejo’s argument is
foreclosed.
Alvaro-Montejo also argues for the first time on appeal that
his indictment was insufficient because it failed to allege
general intent. Alvaro-Montejo’s indictment alleged every
statutorily required element of 8 U.S.C. § 1326 and fairly
imported that Alvaro-Montejo’s reentry was a voluntary act in
view of the allegations that he had been previously deported or
removed and that he had subsequently been found in the United
States without having obtained the consent of the Attorney
General. Alvaro-Montejo failed to challenge the element of
voluntariness in the district court. Consequently, the
indictment was statutorily sufficient. See United States v.
Guzman-Ocampo, 236 F.3d 233 (5th Cir. 2000).
The judgment of the district court is AFFIRMED.