United States v. Rangel

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-21151 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

AURELIO RANGEL,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-333-1 - - - - - - - - - - August 2, 2001

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

Aurelio Rangel Barron appeals his guilty-plea conviction for

illegal reentry into the United States following deportation in

violation of 8 U.S.C. § 1326. Rangel argues that a prior felony

conviction is an element of the offense that must be alleged in

the indictment rather than a sentencing factor. Rangel

acknowledges that his argument is foreclosed by Almendarez-Torres

v. United States, 523 U.S. 224 (1998), but he seeks to preserve

the issue for possible Supreme Court review in the light of

Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi did not

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-21151 -2-

overrule Almendarez-Torres. See United States v. Dabeit, 231

F.3d 979, 984 (5th Cir. 2000), cert. denied, 121 S. Ct. 1214

(2001). Rangel’s first argument is therefore foreclosed.

Rangel also argues that his indictment does not charge an

offense because it fails to allege any general intent on his

part. Rangel’s indictment, however, “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.