United States v. Zapata , 308 F. App'x 737 ( 2009 )


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  •           IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT United States Court of Appeals
    Fifth Circuit
    FILED
    January 13, 2009
    No. 07-51489
    Summary Calendar               Charles R. Fulbruge III
    Clerk
    UNITED STATES OF AMERICA
    Plaintiff-Appellee
    v.
    RICARDO AMARO ZAPATA, also known as Ricardo Zapata Amaro
    Defendant-Appellant
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 3:07-CR-411-1
    Before JONES, Chief Judge, and STEWART and OWEN, Circuit Judges.
    PER CURIAM:*
    Ricardo Amaro Zapata appeals his 120-month sentence following his guilty
    plea conviction for conspiracy to possess and possession with intent to distribute
    100 kilograms or more of a mixture containing marijuana. Zapata argues that
    his sentence violates Apprendi v. New Jersey, 
    530 U.S. 466
    (2000), because his
    indictment did not allege the prior conviction used to increase both his
    sentencing guideline range and his mandatory minimum sentence. As Zapata
    *
    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    should not be published and is not precedent except under the limited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. 07-51489
    acknowledges, this argument is foreclosed by Almendarez-Torres v. United
    States, 
    523 U.S. 224
    , 235 (1998). United States v. Mata, 
    491 F.3d 237
    , 245 (5th
    Cir. 2007), cert. denied, 
    128 S. Ct. 1219
    (2008).
    Zapata argues that the district court committed reversible error by
    denying him a minor role adjustment to his offense level and by not articulating
    the factual basis for the denial. The record demonstrates that Zapata’s ongoing
    participation in the transportation of multiple kilograms of marijuana provided
    an indispensable service to the drug trafficking operation and was essential to
    its success. See United States v. Brown, 
    54 F.3d 234
    , 241 (5th Cir. 1995).
    The requirement that the district court articulate a sufficient factual basis
    for the denial of a minor role adjustment can be satisfied through implicit
    findings, such as when the district court adopts the presentence report, which
    occurred in this case. See United States v. Gallardo-Trapero, 
    185 F.3d 307
    , 324
    (5th Cir. 1999). Accordingly, the judgment of the district court is AFFIRMED.
    2