United States v. Resendez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40949 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARTURO RESENDEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-00-CR-209-1 -------------------- April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Arturo Resendez appeals the 84-month sentence imposed

following his guilty-plea conviction for illegal re-entry after

deportation in 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.

Resendez 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 Supreme Court review in light of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40949 -2-

Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). Apprendi did not

overrule Almendarez-Torres. See Apprendi, 120 S. Ct. at 2362;

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

denied, 121 S. Ct. 1214 (2001). This argument fails.

Resendez also argues that his indictment was defective under

the Fifth and Sixth Amendments because it did not allege general

intent. Because Resendez did not present this argument to the

district court, review is under a “maximum liberality” standard.

United States v. Guzman-Ocampo, 236 F.3d 233, 236 (5th Cir.

2000). Resendez’s indictment listed every statutorily required

element of the offense, informed him of the charge, and fairly

imported that his reentry was voluntary in view of the allegation

that he had been deported and removed from the United States and

was present without having first obtained the Attorney General’s

consent. Resendez’s indictment was statutorily and

constitutionally sufficient. See id. at 239 n.13.

The judgment of the district court is AFFIRMED.