                  UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                           No. 00-20500
                         Summary Calendar


                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,


                               VERSUS


                      JESUS LOPEZ-CERVANTES,

                                                 Defendant-Appellant.




           Appeal from the United States District Court
                For the Southern District of Texas
                          (H-00-CR-72-1)
                         February 22, 2001


Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.
PER CURIAM:*

      Jesus Lopez-Cervantes (“Lopez”) appeals his conviction and

sentence after pleading guilty to illegal reentry by a previously

deported alien.   We affirm.



  *
   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opinion should not be published and is not precedent except under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.

                                 1
     On October 23, 1999, when agents of the Immigration and

Naturalization Service interviewed Lopez in the Harris County Jail,

they discovered that he was a citizen of Mexico.   Official records

revealed that he previously had been convicted of, and served a

prison term for, burglary of a building and subsequently had been

deported to Mexico on June 3, 1999.

     On February 14, 2000, Lopez was charged in the district court

in a one-count indictment with being an alien who previously had

been deported and who was unlawfully found in the United States, in

violation of 8 U.S.C. § 1326(a), (b)(2).     The indictment charged

the following:

     On or about Ocober 23, 1999, in the Houston Division of
     the Southern District of Texas,

                        JESUS LOPEZ-CERVANTES

     defendant herein, an alien previously deported and
     removed from the United States, was found present in the
     United States at Houston, Texas, without having obtained
     the consent of the Attorney General of the United States
     to apply for readmission into the United States.

     On March 7, 2000, Lopez pleaded guilty to the illegal reentry

charge. The district court sentenced Lopez to eighty-seven months’

imprisonment.    Lopez timely appealed.

     Lopez argues that his sentence should be vacated in light of

the Supreme Court’s recent opinion in Apprendi v. New Jersey, 120

S. Ct. 2348, 2362 & n.15 (2000).      He argues that a prior felony

conviction is an element of the offense of reentry following

deportation after a felony conviction, and that his indictment did


                                  2
not allege a prior felony conviction.

       The      substantive          offense        of   illegal    reentry       following

deportation is defined is 8 U.S.C. § 1326(a) and is punishable by

a   term     of   up     to    two    years’    imprisonment.           Section    1326(b)

establishes enhanced penalties for persons who reenter the United

States     if     they    were       deported       following    certain   convictions.

Reentry by an aggravated felon is punishable by up to twenty years’

imprisonment.          See § 1326(b)(2).             In Almendarez-Torres v. United

States, 523 U.S. 224, 235 (1998), the Supreme Court held that §

1326(b)(2)’s enhancement provision is a sentencing factor and not

a   separate       criminal          offense    which     must     be   alleged     in   the

indictment. 523 U.S. at 235. The Supreme Court expressly declined

to overrule Almendarez-Torres.                  United States v. Dabeit, 231 F.3d

979, 984 (5th Cir. 2000) (citing Apprendi, 120 S. Ct. at 2362).

Accordingly, Lopez’s argument has no merit.

       Lopez next argues that the indictment fails to charge an

offense because it does not allege general intent mens rea on his

part.      Because an indictment is jurisdictional, a defect is not

waived by a guilty plea and may be challenged for the first time on

appeal.      United States v. Cabrera-Teran, 168 F.3d 141, 143 (5th

Cir.    1999).

       Lopez is correct that § 1326 is a general intent offense.

United States v. Guzman-Ocampo, –- F.3d –-, 2000 WL 1868226 at *3

(5th Cir. 2000).              However, his indictment “fairly imported” that



                                                3
his reentry was a voluntary act2 and is, therefore sufficient.   Id.

      Based on the foregoing, we affirm Lopez’s conviction and

sentence.

      AFFIRMED.




  2
   The indictment which we approved in Guzman-Ocampo read:
“On or about March 10, 1999, in the Southern District of Texas,
Armando Guzman-Ocampo, . . . an alien previously excluded,
deported, and removed from the United States, was found present in
the United States, at Houston, Texas, without having obtained
consent from the Attorney General of the United States to reapply
for admission into the United States.” Id., at *4 n.13.

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