IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40383 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAVIER ALVARO-MONTEJO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-99-CR-1112-ALL -------------------- February 15, 2001

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

PER CURIAM:*

Javier Alvaro-Montejo appeals his guilty-plea conviction and

sentence for illegal reentry into the United States following a

prior deportation in violation of

(a) and (b).

For the first time on appeal, Alvaro-Montejo argues that the

felony conviction that resulted in his increased sentence under

(b) was an element of the offense that should have

been charged in the indictment. Alvaro-Montejo acknowledges that

his argument is foreclosed by Almendarez-Torres v. United States,

(1998), which holds that the “aggravated

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40383 -2-

felony” is merely a sentencing factor that need not be pleaded in

the indictment. However, Alvaro-Montejo wishes to preserve the

issue for possible Supreme Court review in the light of Apprendi

v. New Jersey,

(2000). In that case, the Supreme

Court held that “[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[.]” Apprendi,

. Apprendi did not overrule Almendarez-Torres.

at 2361-62 & n.15. Accordingly, Alvaro-Montejo’s argument is

foreclosed.

Alvaro-Montejo also argues for the first time on appeal that

his indictment was insufficient because it failed to allege

general intent. Alvaro-Montejo’s indictment alleged every

statutorily required element of

and fairly

imported that Alvaro-Montejo’s reentry was a voluntary act in

view of the allegations that he had been previously deported or

removed and that he had subsequently been found in the United

States without having obtained the consent of the Attorney

General. Alvaro-Montejo failed to challenge the element of

voluntariness in the district court. Consequently, the

indictment was statutorily sufficient. See United States v.

Guzman-Ocampo,

(5th Cir. 2000).

The judgment of the district court is AFFIRMED.