IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-21143
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERARDO MARTINEZ-ZAVALA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-491-1
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August 23, 2001
Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.
PER CURIAM:*
Gerardo Martinez-Zavala 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. Martinez-Zavala has
appealed his conviction and sentence.
Martinez-Zavala 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. Martinez-Zavala acknowledges that his argument
is foreclosed by the Supreme Court’s decision in Almendarez-
*
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this opinion should not be published and is not precedent except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. 00-21143
-2-
Torres 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). Martinez-
Zavala’s argument is foreclosed.
Martinez-Zavala 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 Martinez-
Zavala'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. at 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 Martinez-Zavala'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.
United States v. Martinez-Zavala
Combined Opinion