IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20813
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOMMY ERNESTO PEREIRA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-146-1
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April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Tommy Ernesto Pereira appeals the 77-month sentence imposed
following his plea of guilty to a charge of being found in the
United States after deportation, a violation of 8 U.S.C. § 1326.
First, he argues 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. He
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 seeks to preserve the issue for Supreme Court
*
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that this opinion should not be published and is not precedent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. 00-20813
-2-
review in light of the decision in Apprendi v. New Jersey, 530
U.S. 466, 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). Pereira’s
argument is foreclosed.
Next, Pereira argues that his indictment was defective under
the Fifth and Sixth Amendments because it did not allege general
intent. Because Pereira 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).
Pereira’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.
Finally, Pereira contends that his prior conviction for
unauthorized use of a motor vehicle is not an aggravated felony
within the meaning of 8 U.S.C. § 1326(b)(2) and U.S.S.G.
§ 2L1.2(b)(1)(A). He concedes that this argument is foreclosed
by this court’s decision in United States v. Galvan-Rodriguez,
169 F.3d 217, 219 (5th Cir.), cert. denied, 528 U.S. 837 (1999),
but he seeks to preserve the issue for further review.
As each of Pereira’s issues have been authoritatively
decided against him, the judgment of the district court is
AFFIRMED.