IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20421 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARCO TULIO CAVIELES-GODOY,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CR-676-1 -------------------- February 15, 2001

Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Marco Tulio Cavieles-Godoy (Cavieles) appeals his guilty-

plea conviction and sentence for being an alien illegally found

in the United States subsequent to deportation. See

.

Cavieles argues that a prior offense, upon which his

sentence was enhanced, is an element of an

(b)

offense and that the failure of the superseding indictment to

allege the element results in an illegal sentence. He relies on

Apprendi v. New Jersey,

(2000), for

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-20421 -2-

support. He acknowledges that his argument is foreclosed by

Almendarez-Torres v. United States,

(1998),

but he suggests that the holding of Apprendi places the authority

of Almendarez-Torres in question. This court is “compelled to

follow faithfully a directly controlling Supreme Court precedent

unless and until the Supreme Court itself determines to overrule

it.” United States v. Dabeit,

(5th Cir. 2000)

(internal quotation and citation omitted), petition for cert.

filed, (U.S. Jan. 26, 2001) (No. 00-8299). Accordingly,

Cavieles’ argument is without merit. See

Cavieles argues that the superseding indictment is

fundamentally defective because it fails to allege a general

intent element, and therefore, the indictment fails to charge

Cavieles with an offense. “If an objection to the indictment is

raised for the first time on appeal, as here, and the appellant

does not assert prejudice, then the indictment must be read with

the maximum liberality.” United States v. Ramirez,

(5th Cir. 2000); see United States v. Guzman-Ocampo,

(5th Cir. 2000).

Section 1326 is a general-intent offense. Guzman-Ocampo,

. The allegation of general intent, that

Cavieles’ illegal presence in the United States was voluntary, is

stated in the indictment from the strong inference arising from

the allegations concerning his previous deportation and removal

from the United States. See

. The indictment was

statutorily sufficient. See

AFFIRMED.