IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40664
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE CELESTINO-MAGDALENO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-00-CR-24-ALL
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February 15, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Jose Celestino-Magdaleno appeals from his guilty plea
conviction and sentence for illegal reentry by a previously
deported alien in violation of 8 U.S.C. § 1326(b). Celestino-
Magdaleno argues that his prior felony conviction is an element
of the offense which must be alleged in the indictment.
Celestino-Magdaleno acknowledges that his argument is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but
he seeks to preserve the issue for possible Supreme Court review
in the light of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
*
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that this opinion should not be published and is not precedent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. 00-40664
-2-
2348 (2000). The Supreme Court’s Apprendi decision did not
overrule 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).
Celestino-Magdaleno also argues that the indictment fails to
charge an offense because it does not allege any general intent.
This court’s recent decision in United States v. Guzman-Ocampo,
236 F.3d 266 (5th Cir. 2000), is dispositive. The indictment
alleged every statutorily required element of 8 U.S.C. § 1326 and
fairly imported that Celestino-Magdaleno’s reentry was a
voluntary act in view of the allegations that he had been
excluded, deported, and removed and that he was present without
having obtained the consent of the Attorney General. Celestino-
Magdaleno failed to challenge the indictment as to his
voluntariness. Consequently, under Guzman-Ocampo, the indictment
was statutorily sufficient.
Accordingly, his judgment of conviction is AFFIRMED.