IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20813 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TOMMY ERNESTO PEREIRA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-146-1 -------------------- April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Tommy Ernesto Pereira appeals the 77-month sentence imposed

following his plea of guilty to a charge of being found in the

United States after deportation, a violation of

.

First, he argues that the felony conviction that resulted in his

increased sentence under

(b)(2) was an element of

the offense that should have been charged in the indictment. He

acknowledges that his argument is foreclosed by the Supreme

Court’s decision in Almendarez-Torres v. United States,

(1998), but he seeks to preserve the issue for Supreme Court

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-20813 -2-

review in light of the decision in Apprendi v. New Jersey,

,

(2000).

Apprendi did not overrule Almendarez-Torres. See Apprendi,

; United States v. Dabeit,

(5th Cir. 2000), cert. denied,

(2001). Pereira’s

argument is foreclosed.

Next, Pereira argues that his indictment was defective under

the Fifth and Sixth Amendments because it did not allege general

intent. Because Pereira did not challenge his indictment in the

district court, we review whether it was constitutionally

sufficient under a "maximum liberality" standard. See United

States v. Guzman-Ocampo,

(5th Cir. 2000).

Pereira’s indictment “fairly imported that his reentry was a

voluntary act” and satisfied the constitutional requirements of a

valid indictment. See

, 239 & n.13.

Finally, Pereira contends that his prior conviction for

unauthorized use of a motor vehicle is not an aggravated felony

within the meaning of

(b)(2) and U.S.S.G.

§ 2L1.2(b)(1)(A). He concedes that this argument is foreclosed

by this court’s decision in United States v. Galvan-Rodriguez,

(5th Cir.), cert. denied,

(1999),

but he seeks to preserve the issue for further review.

As each of Pereira’s issues have been authoritatively

decided against him, the judgment of the district court is

AFFIRMED.