IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20583
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN MANUEL GONZALEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-51-1
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April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Juan Manuel Gonzalez appeals from his guilty-plea conviction
and sentence for illegal reentry by a previously deported alien
in violation of 8 U.S.C. § 1326. Gonzalez 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 because the
*
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that this opinion should not be published and is not precedent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. 00-20583
-2-
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).
Gonzalez also argues that the indictment was defective under
the Fifth and Sixth Amendments because it did not allege general
intent. Because Gonzalez 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).
Gonzalez’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.
Accordingly, the judgment is AFFIRMED.