               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 00-40932
                        Conference Calendar



UNITED STATES OF AMERICA,
                                          Plaintiff-Appellee,

versus

SANTANA BEIZA-CRUZ,
                                          Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. L-00-CR-299-1
                      --------------------
                         April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

     Santana Beiza-Cruz (Beiza) appeals his conviction and

sentence following a guilty plea to illegal reentry into the

United States following deportation in violation of 8 U.S.C.

§ 1326(a)(1) and (b)(2).    Beiza argues he should have been

sentenced to no more than two years of imprisonment because a

prior felony conviction is an element of the offense of reentry

following deportation after a felony conviction.    Beiza concedes

that his argument is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224 (1998).    Beiza contends, however, that

Apprendi v. New Jersey, 120 S. Ct. 2348, 2362 (2000), casts doubt

     *
        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that this opinion should not be published and is not precedent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. 00-40932
                                  -2-

on Almendarez-Torres and that he is raising the argument to

preserve it for Supreme Court review.

     Although the Supreme Court noted in Apprendi that, arguably,

Almendarez-Torres was incorrectly decided, the Court expressly

declined to overrule Almendarez-Torres.      Apprendi, 120 S. Ct. at

2362-63 & n.15; United States v. Dabeit, 231 F.3d 979, 984 (5th

Cir. 2000), petition for cert. filed, (U.S. Jan. 26, 2001)

(No. 00-8299).    This court is compelled to follow the precedent

set in Almendarez-Torres "unless and until the Supreme Court

itself determines to overrule it."     Id. (internal quotation and

citation omitted).    Such is true even if it seems "pellucidly

clear" that given the opportunity, the Supreme Court would

overrule its precedent.     Id.   Without the benefit of Apprendi,

Beiza’s claim fails.

     Beiza also argues that his indictment was defective under

the Fifth and Sixth Amendments because it did not allege general

intent, or mens rea.    Beiza argues that any felony conviction

requires some mens rea and that offenses without a mens rea are

generally disfavored.     He contends that strict liability offenses

are exceptional and are limited to offenses likely to cause

public harm.     He argues that other circuits have recognized that

§ 1326 has a general-intent element.

     In United States v. Guzman-Ocampo, 236 F.3d 233, 238-39 (5th

Cir. 2000), this court declared an indictment substantially the

same as the one against Beiza constitutionally and statutorily

sufficient.

     Beiza’s conviction and sentence are AFFIRMED.
