IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10895
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NICOLAS ZAPATA-DIAZ,
also known as Mario Rendon-Leobos,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:01-CR-49-ALL-X
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February 21, 2002
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Nicolas Zapata-Diaz appeals his guilty plea conviction of
being found in the United States after deportation in violation
of 8 U.S.C. § 1326. He argues that his guilty plea was rendered
involuntary by the district court’s failure to advise him during
the plea colloquy that a prior aggravated felony conviction is an
element of the offense under 8 U.S.C. § 1326(b)(2) which the
Government would have to prove to a jury beyond a reasonable
doubt. Zapata-Diaz acknowledges that his argument is foreclosed
*
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that this opinion should not be published and is not precedent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. 01-10895
-2-
by the Supreme Court’s decision in Almendarez-Torres v. United
States, 523 U.S. 224 (1998), but 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, 531 U.S. 1202 (2001). Zapata-
Diaz’s argument is foreclosed. The judgment of the district
court is AFFIRMED.
In lieu of filing an appellee’s brief, the Government has
filed a motion asking this court to dismiss this appeal or, in
the alternative, to summarily affirm the district court’s
judgment. The Government’s motion to dismiss is DENIED. The
motion for a summary affirmance is GRANTED. The Government need
not file an appellee’s brief.
Zapata-Diaz has filed a motion for leave to file an amended
initial brief. The motion is GRANTED.
AFFIRMED; MOTION TO DISMISS DENIED; MOTION FOR SUMMARY
AFFIRMANCE GRANTED; MOTION TO FILE AN AMENDED BRIEF GRANTED.