United States v. Barrios-Ramos

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 23, 2001
• Docket: 00-21045
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-21045 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE ALBERTO BARRIOS-RAMOS, also known as Jose Alberto Barrios also known as Jose Albert Barrios,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-325-1 -------------------- August 23, 2001

Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.

PER CURIAM:*

Jose Alberto Barrios-Ramos (Barrios) appeals the 96-month

sentence imposed following his guilty-plea conviction for illegal

reentry after deportation, in 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.

Barrios 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-21045 -2-

523 U.S. 224 (1998), but he seeks to preserve the issue for

Supreme Court review in light of Apprendi v. New Jersey, 530 U.S.

466 (2000).

Apprendi did not overrule Almendarez-Torres. See Apprendi,

530 U.S. 489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th

Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001). Barrios’s

argument is foreclosed.

Barrios also argues that his indictment was defective under

the Fifth and Sixth Amendments because it did not allege general

intent. Because Barrios did not present this argument to the

district court, review is under a “maximum liberality” standard.

See United States v. Guzman-Ocampo, 236 F.3d 233, 236 (5th Cir.

2000), cert. denied, 121 S. Ct. 2600 (2001).

Barrios’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. 2001). Accordingly, his indictment

sufficiently alleged the general intent required of 8 U.S.C.

§ 1326 offenses. See id. at 297-300.

AFFIRMED.