United States v. Cantillano

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 23, 2001
• Docket: 00-20828
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20828 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARCOS TULIO CANTILLANO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-251-1 -------------------- August 23, 2001

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

PER CURIAM:*

Marcos Tulio Cantillano pleaded guilty to an indictment

charging him for being found illegally in the United States after

deportation, a violation of 8 U.S.C. § 1326. Cantillano has

appealed his conviction and sentence.

Cantillano 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. Cantillano acknowledges that his argument is

foreclosed by the Supreme Court’s decision in Almendarez-Torres

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-20828 -2-

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 489-90;

United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert.

denied, 121 S. Ct. 1214 (2001). Cantillano’s argument is

foreclosed.

Cantillano also contends that the indictment failed to

charge an offense because it did not allege general intent.

Because this issue was raised in the district court, the standard

of review is de novo. United States v. Berrios-Centeno, 250 F.3d

294, 296 (5th Cir. 2001). In Berrios-Centeno, the court held

that the defendant's indictment, which was identical to

Cantillano's indictment, sufficiently alleged a general intent to

reenter. Id. at 298-99 & n.4. The court reasoned that "the

indictment fairly conveyed that Berrios-Centeno's presence was a

voluntary act from the allegations that he was deported, removed,

and subsequently present without consent of the Attorney

General." Id. 299-300 (extending United States v. Guzman-Ocampo,

236 F.3d 233, 233, 238-39 (5th Cir. 2000), cert. denied, 121

S. Ct. 2600 (2001)). Because Cantillano's indictment was

identical to the indictment which the court found sufficient in

Berrios-Centeno, this issue is without merit. The judgment and

sentence are AFFIRMED.