IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40928
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GENARO MACIAS-ZAVALA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-322-ALL
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June 19, 2002
Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Genaro Macias-Zavala appeals the 41-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.
*
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that this opinion should not be published and is not precedent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. 01-40928
-2-
Macias-Zavala 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
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 490; United States v. Dabeit, 231 F.3d 979, 984 (5th
Cir. 2000), cert. denied, 531 U.S. 1202 (2001). Macias-Zavala’s
argument is foreclosed.
Macias-Zavala also argues that his indictment does not
charge an offense because it fails to allege any general intent
on his part. He concedes that this issue is foreclosed by Fifth
Circuit precedent, but he argues that this binding precedent
directly conflicts with a long line of relevant Supreme Court
decisions. Macias-Zavala’s indictment “fairly conveyed that
[his] presence was a voluntary act from the allegations that he
was deported, removed, and subsequently present without consent
of the Attorney General.” See United States v. Berrios-Centeno,
250 F.3d 294, 299-300 (5th Cir.), cert. denied, 122 S. Ct. 288
(2001). Accordingly, his indictment sufficiently alleged the
general intent required of 8 U.S.C. § 1326 offenses. See id. at
297-98.
AFFIRMED.