IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20210
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO MORENO-GALINDO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-577-ALL
--------------------
April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Roberto Moreno-Galindo appeals from his guilty-plea
conviction and sentence for illegal reentry by a previously
deported alien in violation of 8 U.S.C. § 1326. Moreno-Galindo
argues that in view of Apprendi v. New Jersey, 120 S. Ct. 2348,
2362-63 (2000), his prior felony conviction was an element of the
offense under § 1326(b)(2), and not merely a sentence
enhancement. He acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998), but
states that he is preserving it for possible Supreme Court review
*
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that this opinion should not be published and is not precedent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. 00-20210
-2-
because the Supreme Court indicated in Apprendi that Almendarez-
Torres may have been wrongly decided. Because the Supreme Court
has not overruled Almendarez-Torres, this court is compelled to
follow it. See United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001).
Moreno-Galindo argues that the indictment failed to charge
an offense under 8 U.S.C. § 1326 because it did not allege any
general intent on the part of Moreno-Galindo. This court’s
recent decision in United States v. Guzman-Ocampo, 236 F.3d 233,
236 (5th Cir. 2000), is dispositive. The indictment alleged
every statutorily required element of 8 U.S.C. § 1326 and fairly
imported that Moreno-Galindo’s reentry was a voluntary act in
view of the allegations that he had been excluded, deported, and
removed, and that he was present in Houston, Texas, without
having obtained the consent of the Attorney General. Moreno-
Galindo failed to challenge the indictment as to his
voluntariness. Consequently, under Guzman-Ocampo, the indictment
was sufficient.
Accordingly, the judgment of conviction is AFFIRMED.