IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20336
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLAUDIO GURRUSQUIETA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-488-ALL
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December 12, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Claudio Gurrusquieta appeals the 72-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 first 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.
Gurrusquieta acknowledges that his argument is foreclosed by
the Supreme Court’s decision in Almendarez-Torres v. United
States, 523 U.S. 224 (1998), but he seeks to preserve the issue
*
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that this opinion should not be published and is not precedent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. 01-20336
-2-
for Supreme Court review in light of the decision in Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90, 496; United States v. Dabeit, 231 F.3d 979,
984 (5th Cir. 2000), cert. denied, 531 U.S. 1202 (2001).
Gurrusquieta’s argument is foreclosed.
Gurrusquieta contends also that his indictment violated the
Fifth and Sixth Amendments because it lacked an allegation that
he acted with general intent. He acknowledges that his argument
is foreclosed by this court’s precedent in United States v.
Guzman-Ocampo, 236 F.3d 233, 236 (5th Cir. 2000), cert. denied,
121 S. Ct. 2600 (2001), and United States v. Berrios-Centeno, 250
F.3d 294, 299-300 (5th Cir. 2001), cert. denied, 122 S. Ct.
288 (2001), but he wishes to preserve the issue for review by the
Supreme Court.
In Berrios-Centeno, 250 F.3d at 299-300, the court examined
language identical to the language in the Gurrusquieta’s
indictment and held that it sufficiently alleged a general intent
to reenter. Accordingly, Gurrusquieta’s conviction and sentence
are AFFIRMED.