IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20492 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROGER DAVID ORELLANA-RIVERA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CR-662-1 -------------------- February 15, 2001

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

PER CURIAM:*

Roger David Orellana-Rivera appeals his sentence following a

guilty plea conviction for illegal reentry after deportation, a

violation of

. He was sentenced pursuant to

(b)(2) as an alien previously deported after an

aggravated felony.

Orellana argues that his indictment recited only facts and

elements supporting a charge of “simple reentry” under

(a), yet he was sentenced under the more severe provisions

of

(b)(2). Orellana acknowledges that his

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-20492 -2-

argument is foreclosed by the Supreme Court decision in

Almendarez-Torres v. United States, which held that

(b) is a sentencing factor and that a prior aggravated

felony triggering the increased penalty need not be alleged in

the indictment. See

(1998). Orellana seeks to

preserve this issue for possible Supreme Court review in light of

Apprendi v. New Jersey,

(2000). However, until

overruled by the Supreme Court, this argument remains foreclosed

by Almendarez-Torres. See United States v. Dabeit,

(5th Cir. 2000). petition for cert. filed, (U.S. Jan. 26,

2001) (No. 00-8299).

Orellana also argues his indictment was defective because it

did not allege any general intent to violate

. An

identical issue recently was addressed in United States v.

Guzman-Ocampo,

(5th Cir. 2000). This court stated

that

is a general intent offense requiring that

the government show “the defendant had the general intent to

reenter.”

. The court explained that this general

intent mens rea “merely requires that a defendant reenter the

country voluntarily.”

.

Because Orellana did not challenge his indictment in the

district court, his indictment is reviewed under a standard of

“maximum liberality.” See

. Orellana’s indictment is

nearly identical to the indictment found sufficient in Guzman.

See

. Orellana’s indictment lists every

statutorily required element of the offense, adequately informs

him of the charge, and fairly imports that his reentry was a No. 00-20492 -3-

voluntary act 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. See

.

Therefore, Orellana’s argument that his indictment was defective

for failing to allege any general intent is without merit.

AFFIRMED.