IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-21013
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERNANDO GOMEZ-ROMERO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-375-1
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August 7, 2001
Before JOLLY, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Fernando Gomez-Romero appeals the conviction and 41-month
sentence imposed following his plea of guilty to a charge of
being found unlawfully into the United States after deportation,
a violation of 8 U.S.C. § 1326.
Gomez-Romero 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. He acknowledges that his 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that this opinion should not be published and is not precedent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. 00-21013
-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 489-90; United
States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert.
denied, 121 S. Ct. 1214 (2001). Gomez-Romero’s argument is
foreclosed.
Gomez-Romero also argues that his indictment was defective
under the Fifth and Sixth Amendments because it did not allege
general intent. Because Gomez-Romero did not challenge his
indictment on this ground 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), cert. denied, 2001 WL 321598 (U.S.
Jun 29, 2001) (No. 00-9174). Gomez-Romero’s indictment “fairly
conveyed that [his] presence was a voluntary act from the
allegations that he was deported, removed, and subsequently
present without consent of the Attorney General.” See United
States v. Berrios-Centeno, 250 F.3d 294, 299-300 (5th Cir. 2001).
Accordingly, his indictment sufficiently alleged the general
intent required of 8 U.S.C. § 1326 offenses. See id. at 297-300.
AFFIRMED.
United States v. Gomez-Romero
Combined Opinion