IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20182
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO ESTRADA-MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-100-ALL
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October 29, 2001
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Antonio Estrada-Martinez (Estrada) appeals the 36-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. He 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.
Estrada acknowledges that his argument is foreclosed by the
Supreme Court’s decision in Almendarez-Torres v. United States,
*
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that this opinion should not be published and is not precedent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. 01-20182
-2-
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). Estrada’s
argument is foreclosed.
Estrada also contends that the indictment is fatally
defective, as a matter of constitutional law, for failing to
allege general intent. This contention lacks merit. See United
States v. Berrios-Centeno, 250 F.3d 294, 298-300 (5th Cir.),
cert. denied, U.S. (U.S. Oct. 1, 2001) (No. 01-5535).
The judgment of the district court is AFFIRMED.