United States v. Macias-Zavala

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 20, 2002
• Docket: 01-40928
• Status: Unpublished

Opinion

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.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-01-CR-322-ALL -------------------- 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.