               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                              No. 00-20738
                          Conference Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

JORGE LUIS GOMEZ-ELVIR,

                                           Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. H-00-CR-309-1
                      --------------------
                        February 15, 2001

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

PER CURIAM:*

     Jorge Luis Gomez-Elvir (“Gomez”) appeals following a guilty

plea conviction for illegal reentry after deportation, a

violation of 8 U.S.C. § 1326.    Gomez was sentenced pursuant to 8

U.S.C. § 1326(b)(2) as an alien previously deported after an

aggravated felony.

     Gomez argues that his indictment recited only facts and

elements supporting a charge of “simple reentry” under 8 U.S.C.

§ 1326(a), yet he was sentenced under the more severe provisions

of 8 U.S.C. § 1326(b)(2).    Gomez acknowledges that his argument

     *
        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that this opinion should not be published and is not precedent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. 00-20738
                                  -2-

is foreclosed by the Supreme Court decision in Almendarez-Torres

v. United States, which held that 8 U.S.C. § 1326(b) is a

sentencing factor and that a prior aggravated felony triggering

the increased penalty need not be alleged in the indictment.       See

523 U.S. 224, 235 (1998).     Gomez seeks to preserve this issue for

possible Supreme Court review in light of Apprendi v. New Jersey,

120 S. Ct. 2348 (2000).     However, until overruled by the Supreme

Court, this argument remains foreclosed by Almendarez-Torres.

See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000),

petition for cert. filed, (U.S. Jan. 26, 2001) (No. 00-8299).

     Gomez also argues his indictment was defective because it

did not allege any general intent to violate 8 U.S.C. § 1326.      An

identical issue recently was addressed in United States v.

Guzman-Ocampo, 236 F.3d 233 (5th Cir. 2000).     This court stated

that 8 U.S.C. § 1326 is a general intent offense requiring that

the Government show “the defendant had the general intent to

reenter.”   Id. at 239.    The court explained that this general

intent mens rea “merely requires that a defendant reenter the

country voluntarily.”     Id. at 237.

     Because Gomez did not challenge his indictment in the

district court, his indictment is reviewed under a standard of

“maximum liberality.”     See id. at 236.   Gomez’ indictment is

nearly identical to the indictment found sufficient in Guzman.

See id. at 239, n.13.     Gomez’ indictment lists every statutorily

required element of the offense, adequately informs him of the

charge, and fairly imports that his reentry was a voluntary act

in view of the allegation that he had been deported and removed
                          No. 00-20738
                               -3-

from the United States and was present without having first

obtained the Attorney General’s consent.   See id. at 239.

Therefore, Gomez’ argument that his indictment was defective for

failing to allege any general intent is without merit.

     AFFIRMED.
