IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20556
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERALDO MENDOZA-MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-53-1
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April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Geraldo Mendoza-Martinez appeals the conviction and 87-month
sentence imposed following his plea of guilty to a charge of
illegal reentry into the United States after deportation, a
violation of 8 U.S.C. § 1326. He contends that the felony
conviction that resulted in his increased sentence under 8 U.S.C.
§ 1326(b)(2) was an element of the offense that should have been
charged in the indictment. Mendoza-Martinez acknowledges that
his argument is foreclosed by the Supreme Court’s decision in
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
*
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that this opinion should not be published and is not precedent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. 00-20556
-2-
seeks to preserve the issue for Supreme Court review in light of
the decision in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi,
120 S. Ct. at 2362; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001). Mendoza-
Martinez’s argument is foreclosed.
Mendoza-Martinez argues that his indictment was defective
under the Fifth and Sixth Amendments because it did not allege
general intent. Because Mendoza-Martinez did not challenge his
indictment in the district court, we review whether it was
constitutionally sufficient under a "maximum liberality"
standard. See United States v. Guzman-Ocampo, 236 F.3d 233, 236
(5th Cir. 2000). Mendoza-Martinez’s indictment “fairly imported
that his reentry was a voluntary act” and satisfied the
constitutional requirements of a valid indictment. See id. at
236, 239 & n.13.
Mendoza-Martinez’s conviction and sentence are AFFIRMED.