United States v. Betancourt-Sanchez ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-21086
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO BETANCOURT-SANCHEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-473-1
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June 15, 2001
Before WIENER, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Alejandro Betancourt-Sanchez (Betancourt) appeals his
conviction and sentence following a guilty plea to illegal
reentry into the United States following deportation in violation
of 8 U.S.C. § 1326(a)(1) and (b)(2).
First, he argues 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.
He acknowledges that his argument is foreclosed by the Supreme
Court’s decision in Almendarez-Torres v. United States, 523 U.S.
*
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that this opinion should not be published and is not precedent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. 00-21086
-2-
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. 489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th
Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001). Betancourt’s
argument is foreclosed.
Next, Betancourt argues that his indictment was defective
under the Fifth and Sixth Amendments because it did not allege
general intent. Because Betancourt 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). Betancourt’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.
AFFIRMED.