IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20959
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSÉ ENRIQUE AVILA-AMAYA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-382-1
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June 15, 2001
Before WIENER, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
José Enrique Avila-Amaya (“Avila”) appeals his guilty-plea
conviction and 70-month sentence for illegal reentry after
deportation, in 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.
Avila acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
seeks to preserve the issue for Supreme Court review in light of
*
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that this opinion should not be published and is not precedent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. 00-20959
-2-
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). This argument fails.
Avila also argues that his indictment was defective under
the Fifth and Sixth Amendments because it did not allege general
intent. Because Avila did not present this argument to the
district court, review is under a “maximum liberality” standard.
United States v. Guzman-Ocampo, 236 F.3d 233, 236 (5th Cir.
2000), petition for cert. filed, (Mar. 21, 2001)(No. 00-9174).
Avila’s indictment listed every statutorily required element of
the offense, informed him of the charge, and fairly imported that
his reentry was voluntary in view of the allegation that he had
been deported and removed from the United States and was present
without having first obtained the Attorney General’s consent.
The indictment was statutorily and constitutionally sufficient.
See id. at 236, 239 & n.13.
The judgment of the district court is AFFIRMED.
United States v. Avila-Amaya
Combined Opinion