United States v. Gonzalez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20583 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN MANUEL GONZALEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-51-1 -------------------- April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Juan Manuel Gonzalez appeals from his guilty-plea conviction

and sentence for illegal reentry by a previously deported alien

in violation of 8 U.S.C. § 1326. Gonzalez argues that in view of

Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-63 (2000), his

prior felony conviction was an element of the offense under

§ 1326(b)(2) and not merely a sentence enhancement. He

acknowledges that his argument is foreclosed by Almendarez-Torres

v. United States, 523 U.S. 224, 247 (1998), but states that he is

preserving it for possible Supreme Court review because the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-20583 -2-

Supreme Court indicated in Apprendi that Almendarez-Torres may

have been wrongly decided. Because the Supreme Court has not

overruled Almendarez-Torres, this court is compelled to follow

it. See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.

2000), cert. denied, 121 S. Ct. 1214 (2001).

Gonzalez also argues that the indictment was defective under

the Fifth and Sixth Amendments because it did not allege general

intent. Because Gonzalez did not challenge his indictment 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).

Gonzalez’s indictment “fairly imported that his reentry was a

voluntary act” and satisfied the constitutional requirements of a

valid indictment. See id. at 236, 239 & n.13.

Accordingly, the judgment is AFFIRMED.