                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 20, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-51063
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

INOCENCIO GUERRERO-ZAVALA,
also known as Mario Alberto Guerrero-Zavala,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                   USDC No. EP-03-CR-821-ALL-DB
                       --------------------

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

     Inocencio Guerrero-Zavala (Guerrero) appeals his sentence

for illegal reentry following deportation.    Guerrero contends

that the district court erred by failing to treat his prior

state-court assault convictions as “related cases” for purposes

of U.S.S.G. § 4A1.2(a)(2).   Among other things, Guerrero contends

that the evidence demonstrated the “functional consolidation” of




     *
        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that this opinion should not be published and is not precedent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. 03-51063
                                  -2-

the cases based on an agreement among the parties and the court

to dispose of them in the same proceeding.

     A district court’s determination that cases were

consolidated for trial or sentencing is reviewed only for clear

error.   See United States v. Moreno-Arredondo, 255 F.3d 198, 203

n.10 (5th Cir. 2001).     “[A] finding that prior cases were

‘consolidated’ will require either some factual connexity between

them, or else a finding that the cases were merged for trial or

sentencing.”    United States v. Huskey, 137 F.3d 283, 288 (5th

Cir. 1998)(citation omitted).

     As Guerrero concedes, his prior assault convictions

constituted separate offenses that occurred on different dates.

The cases were filed under separate cause numbers, which they

respectively retained through sentencing; the cases were not

consolidated under a single docket number.     Despite Guerrero’s

argument to the contrary, “[t]his court has [] rejected the

proposition that cases must be considered consolidated simply

because two convictions have concurrent sentences.”     United

States v. Garcia, 962 F.2d 479, 482 (5th Cir. 1992)(internal

quotation marks and citation omitted), abrogated on a different

ground by Buford v. United States, 532 U.S. 59, 63-66 (2001).

Furthermore, the mere fact that both assaults stemmed from

domestic disputes is insufficient to make the offenses factually

related since more is required than a showing that the crimes

were similar.   See id.    Given these circumstances, the district
                            No. 03-51063
                                 -3-

court did not clearly err in finding that Guerrero’s prior

assault offenses were not “related” to one another.   See Moreno-

Arredondo, 255 F.3d at 203 n.10.

     Guerrero also 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 (2000).   Guerrero’s contention lacks

merit because 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).

     AFFIRMED.
