USA vs. Macin-Herrera, (5th Cir. 2001)

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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 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.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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