IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40803 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DARREN LENCH TRIVEDI,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-00-CR-91-1 -------------------- March 12, 2001

Before SMITH, BENAVIDES, and DENNIS Circuit Judges.

PER CURIAM:*

Darren Lench Trivedi (Trivedi) appeals from his conviction

and sentence for attempted illegal reentry following deportation

in violation of

. He argues the indictment is

defective because it failed to allege he had the specific intent

to attempt reentry into this country without authorization from

the Attorney General. Trivedi also argues that, pursuant to

Apprendi v. New Jersey,

,

(2000), the

indictment was defective because it did not allege his prior

felony conviction and because it did not allege the timing of 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40803 -2-

prior conviction, namely that it occurred before his last

deportation.

The indictment in this case not only tracked the language of

but also charged Trivedi with "knowingly" and

"unlawfully" attempting to reenter the United States. Trivedi’s

claim being first raised in this appeal and not in the district

court, we construe the language of the indictment with "maximum

liberality" and because the indictment included the words

"knowingly" and "unlawfully," we conclude the indictment

sufficiently charged the essential elements of the offense of

attempted illegal reentry under § 1326. Cf. United States v.

Guzman-Ocampo,

(5th Cir. 2000).

Trivedi next argues that in light of Apprendi,

, his prior felony conviction was an element of the

offense under § 1326(b)(2), and not merely a sentence

enhancement. He acknowledges that his argument is foreclosed by

Almendarez-Torres v. United States,

(1998), but

states that he is preserving it for possible Supreme Court review

because the Supreme Court indicated in Apprendi that Almendarez-

Torres may have been wrongly decided. Because the Supreme Court

has not overruled Almendarez-Torres, this court is compelled to

follow it. See United States v. Dabeit,

(5th Cir. 2000), cert. denied, 2001 U.S. Lexis 1889 (U.S. Feb.

26, 2001) (No. 00-8299). Trivedi's argument that the indictment

must allege that his prior felony conviction occurred before his

last deportation is also without merit. Trivedi has not

explained why an indictment that, under Almendarez-Torres, need No. 00-40803 -3-

not allege the defendant's prior conviction at all is deficient

for omitting the details of that prior conviction.

AFFIRMED.