IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40664 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE CELESTINO-MAGDALENO,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. L-00-CR-24-ALL - - - - - - - - - - February 15, 2001

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

PER CURIAM:*

Jose Celestino-Magdaleno appeals from his guilty plea

conviction and sentence for illegal reentry by a previously

deported alien in violation of

(b). Celestino-

Magdaleno argues that his prior felony conviction is an element

of the offense which must be alleged in the indictment.

Celestino-Magdaleno acknowledges that his argument is foreclosed

by Almendarez-Torres v. United States,

(1998), but

he seeks to preserve the issue for possible Supreme Court review

in the light of Apprendi v. New Jersey,

, 120 S. Ct.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40664 -2-

2348 (2000). The Supreme Court’s Apprendi decision did not

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

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

Jan. 26, 2001) (No. 00-8299).

Celestino-Magdaleno also argues that the indictment fails to

charge an offense because it does not allege any general intent.

This court’s recent decision in United States v. Guzman-Ocampo,

(5th Cir. 2000), is dispositive. The indictment

alleged every statutorily required element of

and

fairly imported that Celestino-Magdaleno’s reentry was a

voluntary act in view of the allegations that he had been

excluded, deported, and removed and that he was present without

having obtained the consent of the Attorney General. Celestino-

Magdaleno failed to challenge the indictment as to his

voluntariness. Consequently, under Guzman-Ocampo, the indictment

was statutorily sufficient.

Accordingly, his judgment of conviction is AFFIRMED.