IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50830
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REYES ZAPATA-GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-99-CR-631-1-WWJ
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April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Represented by the Federal Public Defender, Reyes Zapata-
Garcia (Zapata), a/k/a Reyes Zapata-Sandoval, a/k/a Zapata Reyes-
Garcia, appeals his 63-month sentence imposed following his jury-
trial conviction for illegal reentry subsequent to deportation.
See 8 U.S.C. § 1326.
Zapata contends that the felony conviction that resulted in
his increased sentence under 8 U.S.C. § 1326(b)(2) was an element
of the offense that should have been charged in the indictment
and proved by the prosecution to the jury beyond a reasonable
*
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that this opinion should not be published and is not precedent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. 00-50830
-2-
doubt. Zapata acknowledges that his argument is foreclosed by
the Supreme Court’s decision in Almendarez-Torres v. United
States, 523 U.S. 224 (1998), but he seeks to preserve the issue
for Supreme Court review in light of the decision in Apprendi v.
New Jersey, 120 S. Ct. 2348 (2000). He also attempts to
distinguish Almendarez-Torres based on the procedure resulting in
the conviction: Zapata was convicted by a jury, and the
defendant in Almendarez-Torres was convicted pursuant to a guilty
plea. See Almendarez-Torres, 523 U.S. at 227. The asserted
distinction is unpersuasive.
Apprendi did not overrule Almendarez-Torres. See Apprendi,
120 S. Ct. at 2362; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001). Zapata’s
argument is foreclosed. The judgment of the district court is
AFFIRMED.