IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40242
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO SOTO-CASTELLANO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-00-CR-872-ALL
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October 29, 2001
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Ricardo Soto-Castellano (“Soto”) appeals his conviction and
84-month sentence following his plea of guilty to illegal reentry
into the United States after deportation, a violation of 8 U.S.C.
§ 1326. Soto 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.
Soto acknowledges that his first argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
seeks to preserve the issue for Supreme Court review in light of
*
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that this opinion should not be published and is not precedent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. 01-40242
-2-
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). Soto’s argument is foreclosed. See
Almendarez-Torres, 523 U.S. at 235.
Soto also argues that his indictment was defective under the
Fifth and Sixth Amendments because it did not allege general
intent. Because Soto did not present this argument to the
district court, the indictment is reviewed with “maximum
liberality.” United States v. Guzman-Ocampo, 236 F.3d 233, 236
(5th Cir. 2000). Soto’s indictment listed every statutorily
required element of 8 U.S.C. § 1326, informed him of the charge,
and fairly imported that his reentry was a voluntary act in view
of the allegation that he had been deported and removed from the
United States and was subsequently found in the United States
without having obtained the consent of the Attorney General.
Soto’s indictment was statutorily and constitutionally
sufficient. See id. at 239 n.13.
Soto’s conviction and sentence are AFFIRMED.