IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41325
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EZEQUIEL ZAPATA-REYES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-00-CR-315-1
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August 21, 2001
Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.
PER CURIAM:*
Ezequiel Zapata-Reyes (“Zapata”) appeals the 41-month
sentence imposed following his plea of guilty to a charge of
being found in the United States after deportation, a violation
of 8 U.S.C. § 1326. For the first time on appeal, he contends
that the felony conviction that resulted in his increased
sentence under 8 U.S.C. § 1326(b) was an element of the offense
that should have been charged in the indictment.
Zapata acknowledges that his argument is foreclosed by the
Supreme Court’s decision in Almendarez-Torres v. United States,
*
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that this opinion should not be published and is not precedent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. 00-41325
-2-
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, 530 U.S. 466 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001). Zapata
has failed to demonstrate error, plain or otherwise. Dabeit, 231
F.3d at 983-84. The judgment of the district court is
AFFIRMED.