IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20828
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCOS TULIO CANTILLANO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-251-1
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August 23, 2001
Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.
PER CURIAM:*
Marcos Tulio Cantillano pleaded guilty to an indictment
charging him for being found illegally in the United States after
deportation, a violation of 8 U.S.C. § 1326. Cantillano has
appealed his conviction and sentence.
Cantillano 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. Cantillano acknowledges that his argument is
foreclosed by the Supreme Court’s decision in Almendarez-Torres
*
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this opinion should not be published and is not precedent except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. 00-20828
-2-
v. United 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). Cantillano’s argument is
foreclosed.
Cantillano also contends that the indictment failed to
charge an offense because it did not allege general intent.
Because this issue was raised in the district court, the standard
of review is de novo. United States v. Berrios-Centeno, 250 F.3d
294, 296 (5th Cir. 2001). In Berrios-Centeno, the court held
that the defendant's indictment, which was identical to
Cantillano's indictment, sufficiently alleged a general intent to
reenter. Id. at 298-99 & n.4. The court reasoned that "the
indictment fairly conveyed that Berrios-Centeno's presence was a
voluntary act from the allegations that he was deported, removed,
and subsequently present without consent of the Attorney
General." Id. 299-300 (extending United States v. Guzman-Ocampo,
236 F.3d 233, 233, 238-39 (5th Cir. 2000), cert. denied, 121
S. Ct. 2600 (2001)). Because Cantillano's indictment was
identical to the indictment which the court found sufficient in
Berrios-Centeno, this issue is without merit. The judgment and
sentence are AFFIRMED.