United States v. Macin-Herrera

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 15, 2001
• Docket: 00-20869
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20869 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARMANDO MACIN-HERRERA,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-359-1 - - - - - - - - - - June 15, 2001

Before WIENER, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

Armando Macin-Herrera (Macin) appeals his conviction and

sentence following a guilty plea for illegal reentry following a

deportation. See 8 U.S.C. § 1326. Macin argues that (1) he

should have received only a two-year sentence, because the

indictment failed to allege as an element of the offense that he

was an aggravated felon; and (2) the indictment was defective

because it failed to allege a general intent mens rea.

Macin acknowledges that his first 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-20869 -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 487-90; United

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

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

Macin challenges the alleged mens rea omission for the first

time on appeal. This court has upheld the sufficiency of an

indictment that contained substantially identical language to

Macin’s indictment. See United States v. Guzman-Ocampo, 236 F.3d

233, 239 n.13 (5th Cir. 2000). Accordingly, this argument is

foreclosed as well. Macin’s conviction and sentence are

AFFIRMED.