IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20937
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GASPAR VASQUEZ-AREGUIN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-145-1
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June 15, 2001
Before WIENER, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Gaspar Vasquez-Areguin (“Vasquez”) appeals the 75-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. 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.
Vasquez acknowledges that his argument is foreclosed by the
Supreme Court’s decision in Almendarez-Torres v. United States,
*
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that this opinion should not be published and is not precedent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. 00-20937
2–
523 U.S. 224 (1998), but he seeks to preserve the issue for
Supreme Court review in light of Apprendi v. New Jersey, 530 U.S.
466 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001). Vasquez’s
argument is foreclosed.
Vasquez contends also that his indictment should have been
dismissed because it failed to allege any general intent to enter
the United States. Vasquez did not challenge the indictment in
the district court; therefore, it is construed in favor of
validity unless it was so defective that, by any reasonable
construction, it failed to charge the offense of conviction.
United States v. Threadgill, 172 F.3d 357, 373 (5th Cir.), cert.
denied, 528 U.S. 871 (1999). Vasquez’s indictment “fairly
imported that his reentry was a voluntary act” and satisfied the
constitutional requirements of a valid indictment. United States
v. Guzman-Ocampo, 236 F.3d 233, 236, 239 & n.13 (5th Cir. 2000).
Vasquez’s conviction and sentence are AFFIRMED.
United States v. Vasquez-Areguin
Combined Opinion