IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20237
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROGELIO GUZMAN-JIMENEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-568-1
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August 21, 2001
Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.
PER CURIAM:*
Rogelio Guzman-Jimenez (“Guzman”) appeals his conviction and
the 96-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. Guzman 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. Guzman acknowledges that his argument
is foreclosed by the Supreme Court’s decision in Almendarez-
Torres v. United States, 523 U.S. 224, 226-27 (1998), but he
*
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this opinion should not be published and is not precedent except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. 00-20237
-2-
seeks to preserve the issue for Supreme Court review in light of
the decision in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi, 530
U.S. at 489-90, 496; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001). Guzman’s
argument is foreclosed.
Guzman next challenges his indictment because it did not
allege general intent as an element of the offense. We review
Guzman’s indictment under a de novo standard of review. See
United States v. Berrios-Centeno, 250 F.3d 294, 296 (5th Cir.
2001). Section 1326, 18 U.S.C., is a general intent offense.
United States v. Guzman-Ocampo, 236 F.3d 233, 238-39 (5th Cir.
2000), cert. denied, 121 S. Ct. 2600 (2001). General intent to
re-enter the United States “may be inferred by the fact that a
defendant was previously deported and subsequently found in the
United States without consent.” Berrios-Centeno, 250 F.3d at 299
(citations, internal quotations, footnotes, and ellipsis
omitted).
Guzman’s indictment sufficiently alleged the general intent
mens rea required of 18 U.S.C. § 1326 offenses because the
indictment alleged that he was deported, removed, and
subsequently present without consent of the Attorney General.
See Berrios-Centeno, 250 F.3d at 299-300. The judgment of the
district court is AFFIRMED.