IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40877
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GASPAR GARCIA-RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-00-CR-356-1
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June 13, 2001
Before WIENER, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Gaspar Garcia-Rodriguez appeals his guilty-plea conviction
for illegal reentry into the United States after deportation in
violation of 8 U.S.C. § 1326. He argues that in view of Apprendi
v. New Jersey, 120 S. Ct. 2348, 2362-63 (2000), his prior felony
conviction was an element of the offense under 8 U.S.C.
§ 1326(b)(2), and not merely a sentence enhancement. He
acknowledges that his argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224, 247 (1998). Because the Supreme
Court has not overruled Almendarez-Torres, this court is
*
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this opinion should not be published and is not precedent except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. 00-40877
-2-
compelled to follow it. See United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001).
Garcia also argues that the indictment was defective under
the Fifth and Sixth Amendments because it did not allege general
intent. Because Garcia did not challenge his indictment on this
basis 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). Garcia’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.
AFFIRMED.