United States v. Gomez-Romero

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 8, 2001
• Docket: 00-21013
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-21013 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FERNANDO GOMEZ-ROMERO,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-375-1 - - - - - - - - - - August 7, 2001

Before JOLLY, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

Fernando Gomez-Romero appeals the conviction and 41-month

sentence imposed following his plea of guilty to a charge of

being found unlawfully into the United States after deportation,

a violation of 8 U.S.C. § 1326.

Gomez-Romero 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. He acknowledges that his argument is foreclosed

by the Supreme Court’s decision in Almendarez-Torres v. United

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-21013 -2-

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). Gomez-Romero’s argument is

foreclosed.

Gomez-Romero also argues that his indictment was defective

under the Fifth and Sixth Amendments because it did not allege

general intent. Because Gomez-Romero did not challenge his

indictment on this ground in the district court, we review

whether it was constitutionally sufficient under a "maximum

liberality" standard. See United States v. Guzman-Ocampo, 236

F.3d 233, 236 (5th Cir. 2000), cert. denied, 2001 WL 321598 (U.S.

Jun 29, 2001) (No. 00-9174). Gomez-Romero’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.