IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20902
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO ANTONIO GUTIERREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-305-1
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October 29, 2001
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Pedro Antonia Gutierrez (“Gutierrez”) appeals his conviction
and 57-month sentence following his plea of guilty to illegal
reentry into the United States after deportation, a violation of
8 U.S.C. § 1326. Gutierrez argues 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 his indictment.
Gutierrez acknowledges that his first argument is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but
*
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that this opinion should not be published and is not precedent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. 00-20902
-2-
he seeks to preserve the issue for Supreme Court review in light
of decision in Apprendi because the Supreme Court indicated in
Apprendi that Almendarez- Torres may have been wrongly decided.
Because the Supreme Court has not overruled Almendarez-Torres,
this court is compelled to follow it. See United States v.
Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert. denied, 121
S. Ct. 1214 (2001). Gutierrez’s argument is foreclosed. See
Almendarez-Torres, 523 U.S. at 235.
Gutierrez also argues that his indictment was defective
under the Fifth and Sixth Amendments because it did not allege
general intent. Because Gutierrez withdrew this argument in the
district court, review is foreclosed. See United States v.
Reveles, 190 F.3d 678 (5th Cir. 1999); United States v. Olano,
507 U.S. 725 (1993).
Gutierrez’s conviction and sentence are AFFIRMED.