UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20334
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
EUGENIO LUEVANO-VELA, also known as Eugenio Vela,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
H-99-CR-437-ALL
June 7, 2001
Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.
PER CURIAM:*
Defendant Eugenio Luevano-Vela appeals his conviction after
guilty plea for violation of 8 U.S.C. § 1326, which prohibits a
person who has been previously deported from being present in the
United States without consent of the Attorney General. We affirm.
*
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opinion should not be published and is not precedent except under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.
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Luevano-Vela’s indictment, filed August 4, 1999, alleged that
he, “an alien previously deported and removed from the United
States, was found present in the United States at Houston, Texas
without having obtained the consent of the Attorney General of the
United States to apply for readmission into the United States.”
Prior to entering a guilty plea, Luevano-Vela filed a motion to
dismiss the indictment, arguing that it failed to allege that he
was found in the United States after an unlawful reentry or that he
had the requisite mens rea to commit the offense. The district
court denied the motion and sentenced Luevano-Vela to 78 months of
imprisonment followed by a three-year term of supervised release.
On appeal, Luevano-Vela challenges the sufficiency of his
indictment, which challenge we review de novo. See United States
v. Guzman-Ocampo, 236 F.3d 233, 236 (5th Cir. 2000).
Luevano-Vela contends that his indictment was insufficient to
support the 16-level increase in his offense level and the
resulting enhanced sentence under § 1326(b)(2) because it did not
allege that he had a prior felony conviction. Section 1326(a)
provides that an alien without a prior conviction who is convicted
of illegal reentry following deportation faces a two-year maximum
prison sentence. Under § 1326(b)(2), however, if the alien’s prior
deportation was subsequent to a conviction for an aggravated
felony, the maximum sentence is twenty years. The Supreme Court
has held that, because § 1326(b)(2) provides for a sentencing
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factor and not a separate criminal offense, the aggravated felony
triggering the increased maximum penalty need not be alleged in the
indictment. Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998). Luevano-Vela acknowledges that Almendarez-Torres
foreclosed the issue, but he argues that Apprendi v. New Jersey,
120 S. Ct. 2348 (2000), indicates that Almendarez-Torres is no
longer viable. See Apprendi, 120 S. Ct. at 2362 & n.15. However,
this court has held that the Supreme Court’s Apprendi decision
“expressly declined to overrule Almendarez-Torres,” which therefore
remains in effect. United States v. Dabeit, 231 F.3d 979, 984 (5th
Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001). We find no merit
in Luevano-Vela’s Apprendi argument.
Luevano-Vela next contends that his indictment does not charge
an offense because it failed to allege the requisite mens rea, that
is, general intent. The general intent of a defendant to re-enter
the United States may be inferred from the fact that the defendant
was previously deported and subsequently found in the United States
without consent of the Attorney General. United States v. Berrios-
Centeno, ___ F.3d ___, 2001 WL 435494, *3 (5th Cir. April 27,
2001). The indictment in the instant case is almost identical to
the indictment found sufficient in Berrios-Centeno. Id. at *4 n.4.
We conclude that Luevano-Vela’s indictment sufficiently alleged the
general intent mens rea required in § 1326 offenses.
Luevano-Vela then challenges his sentence, arguing that the
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district court erred in enhancing his offense based on his prior
aggravated felony conviction. His only prior felony was a 1980
conviction for the unauthorized use of a motor vehicle handed down
by a state district court. He argues that the offense did not have
the element of the use, attempted use, or threatened use of
physical force against the person or property of another. He
argues in the alternative that his conviction falls outside the
scope of a crime of violence because he received a suspended three-
year term of imprisonment and probation, which did not qualify as
a year or more of imprisonment. He recognizes that this court has
already rejected his arguments in United States v. Galvan-
Rodriguez, 69 F.3d 217, 219 (5th Cir.), cert. denied, 528 U.S. 837
(1999) and United States v. Banda-Zamora, 178 F.3d 728, 730 (5th
Cir. 1999). We agree. The district court did not err in imposing
the 16-level enhancement based on Luevano-Vela’s prior conviction.
Based on the foregoing, we affirm Luevano-Vela’s conviction
and sentence.
AFFIRMED.
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