IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40369 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RENATO CARDENAS-GARCIA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CR-1073-1 -------------------- February 15, 2001

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

PER CURIAM:*

Renato Cardenas-Garcia (“Cardenas”) appeals his guilty-plea

conviction for unlawful reentry into the United States following

a prior deportation in violation of

(a) and (b).

For the first time on appeal, Cardenas contends that his

sentencing enhancement under § 1326(b), for having committed an

“aggravated felony” prior to reentry, was unconstitutional

because his indictment failed to allege such prior offense. He

correctly acknowledges that this argument is precluded by

Almendarez-Torres v. United States,

(1998), which

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40369 -2-

holds that the “aggravated felony” is merely a sentencing factor

that need not be pleaded in the indictment. A more recent

decision cited by Cardenas, Apprendi v. New Jersey,

(2000), does not change this result. See Apprendi,

(“[o]ther than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury[.]”).

Cardenas also argues for the first time on appeal that his

indictment was insufficient because it failed to allege general

intent. Because the indictment charged that Cardenas had been

deported or removed and had subsequently been found in the United

States without having obtained the consent of the Attorney

General, the indictment imported that his reentry was voluntary,

and the charge was therefore statutorily sufficient. See United

States v. Guzman-Ocampo,

(5th Cir. 2000).

The judgment of the district court is AFFIRMED.