IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20869
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO MACIN-HERRERA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-359-1
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June 15, 2001
Before WIENER, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Armando Macin-Herrera (Macin) appeals his conviction and
sentence following a guilty plea for illegal reentry following a
deportation. See 8 U.S.C. § 1326. Macin argues that (1) he
should have received only a two-year sentence, because the
indictment failed to allege as an element of the offense that he
was an aggravated felon; and (2) the indictment was defective
because it failed to allege a general intent mens rea.
Macin acknowledges that his first argument is foreclosed by
the Supreme Court’s decision in Almendarez-Torres v. United
*
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that this opinion should not be published and is not precedent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. 00-20869
-2-
States, 523 U.S. 224 (1998), but he seeks to preserve the issue
for Supreme Court review in light of the decision in Apprendi v.
New Jersey, 530 U.S. 466 (2000). Apprendi did not overrule
Almendarez-Torres. See Apprendi, 530 U.S. at 487-90; United
States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert.
denied, 121 S. Ct. 1214 (2001). Macin’s argument is foreclosed.
Macin challenges the alleged mens rea omission for the first
time on appeal. This court has upheld the sufficiency of an
indictment that contained substantially identical language to
Macin’s indictment. See United States v. Guzman-Ocampo, 236 F.3d
233, 239 n.13 (5th Cir. 2000). Accordingly, this argument is
foreclosed as well. Macin’s conviction and sentence are
AFFIRMED.