United States v. Hernandez-Rico

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40758
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MARTIN HERNANDEZ-RICO,
also known as Jose Cruz Rivera-Guerra,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-00-CR-111-1
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February 15, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
In this appeal following his guilty-plea conviction for
illegally reentering the United States after having been
deported, in violation of 8 U.S.C. § 1326(a) and (b)(2), Jose
Martin Hernandez-Rico argues that a prior felony conviction is an
element of the offense of illegal reentry and not merely a
sentencing factor. He also asserts that the indictment is
insufficient because it does not allege any general intent.

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No. 00-40758
-2-
Hernandez acknowledges that in Almendarez-Torres v. United
States, 523 U.S. 224, 226-27 (1998), the Supreme Court held that
a prior felony conviction under 8 U.S.C. § 1326(b)(2) was merely
a sentencing factor and thus need not be included in the
indictment. He notes that in its subsequent decision in Apprendi
v. New Jersey, 530 U.S. 466, ___, 120 S. Ct. 2348, 2362 (2000),
however, the Supreme Court stated that it was arguable that
Almendarez-Torres was decided incorrectly. In light of the clear
precedent of Almendarez-Torres, Hernandez has failed to show
error, plain or otherwise, in his indictment or sentence on this
basis. See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000), petition for cert. filed, (U.S. Jan. 26, 2001) (No. 00-
8299).
Hernandez’s argument that the indictment is deficient
because it fails to allege any general intent similarly is
without merit. Although 8 U.S.C. § 1326 is a general intent
offense, we rejected such an argument in a case involving a
nearly identical indictment. See United States v. Guzman-Ocampo,
236 F.3d 233, 238-39 (5th Cir. 2000). For the reasons set forth
in that case, we conclude that the indictment sufficiently
apprised Hernandez of the nature of the charges against him.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.

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