IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20504
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
EBENOR ADONAY CALIX-ZAPATA
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-229-ALL
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February 7, 2003
Before KING, Chief Judge,and DeMOSS and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Ebenor Adonay Calix-Zapata appeals his conviction under
8 U.S.C. § 1326 for being present illegally in the United States
following deportation and conviction for an aggravated felony.
Calix-Zapata was found guilty in a bench trial and was sentenced
to seventy months’ imprisonment and three years’ supervised
release.
*
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that this opinion should not be published and is not precedent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. 02-20504
-2-
Calix-Zapata contends that he was denied the right to a jury
trial. He asserts that FED. R. CRIM. P. 23(a) requires a written
waiver of the right to a jury trial, that a written waiver was
not obtained, and that he did not execute an express and
intelligent oral waiver. He argues that his case is controlled
by United States v. Mendez, 102 F.3d 126 (5th Cir. 1997), and
that the error is a structural defect of constitutional dimension
that requires an automatic reversal.
Rule 23(a), FED. R. CRIM. P., requires that in criminal
cases, the accused be afforded a trial by jury unless the right
is waived “in writing with the approval of the court and the
consent of the government.” FED. R. CRIM. P. 23(a); see U.S.
CONST. Art. III, § 2, cl. 3. Nevertheless, we recognize a
“limited exception” to the requirement of a written waiver.
Mendez, 102 F.3d at 129.
Calix-Zapata’s case is distinguishable from the facts in
Mendez. Mendez was from a poor family in rural Columbia, could
not speak or understand English, did not understand the purpose
of a jury, had been in this country only a few days before his
arrest, claimed to have not spoken with his lawyer about a
waiver, and did not have an opportunity to voice an objection to
the dismissal of the venire. Id. Calix-Zapata addressed the
district court in English, lived in the United States for over
ten years prior to the instant offense, is familiar with the
No. 02-20504
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American justice system, and has been trained and employed as a
welder.
The district court did not proceed with a bench trial in
Calix-Zapata’s case as if there was no other available option.
The district court relied on the Federal Public Defender’s
representation that Calix-Zapata wished to proceed with a bench
trial on stipulated facts. When Calix-Zapata expressed
uncertainty regarding the proceedings, the district court
entertained his questions and concerns, explained his options,
allowed him to confer with counsel, and allowed him to make an
informed and unpressured choice. The district court ascertained
on the record that Calix-Zapata chose to proceed with the bench
trial. A review of the record reveals that Calix-Zapata
intelligently waived his right to a jury trial and that his case
falls within the limited exception described in United States v.
Page, 661 F.2d 1080, 1080-81 (5th Cir. 1981).
Calix-Zapata challenges the denial of his motion to suppress
evidence of his administrative deportation. He argues that the
deportation was conducted in violation of his rights to due
process. He asserts that the absence of a record of the
administrative deportation and the fact that a non-judicial
Immigration Service official presided over the deportation were
structural errors that rendered the proceedings so unfair that he
does not have to show actual prejudice. He acknowledges that his
argument is foreclosed by our opinion in United States v.
No. 02-20504
-4-
Benitez-Villafuerte, 186 F.3d 651 (5th Cir. 1999), but he seeks
to preserve the issue for Supreme Court review.
Calix-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. He 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, 530 U.S. 466, 490 (2000).
The judgment of the district court is AFFIRMED.