     Case: 18-10975      Document: 00514977947         Page: 1    Date Filed: 05/31/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 18-10975                            May 31, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

v.

RAUL ZAPATA-DOMINGUEZ,

                                                 Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-22-1


Before JONES, HIGGINSON, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Raul Zapata-Dominguez pleaded guilty to illegal reentry after
deportation in violation of 8 U.S.C. § 1326(a) and (b)(1). He was sentenced to
16 months’ imprisonment followed by three years of supervised release. On
appeal, Zapata-Dominguez challenges the enhancement of his sentence under
§ 1326(b)(1) and one condition of his supervised release. As Zapata-Dominguez




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 18-10975

concedes, he failed to raise either issue in the district court, and thus plain
error review applies. See Puckett v. United States, 556 U.S. 129, 135 (2009).
      First, Zapata-Dominguez challenges the enhancement of his sentence
under § 1326(b)(1).     Specifically, he argues that: (1) the § 1326(b)(1)
enhancement provision is unconstitutional under Apprendi v. New Jersey, 530
U.S. 466 (2000), and (2) his guilty plea was involuntary because the district
court failed to inform him that § 1326(b)(1) stated an essential element of his
offense. Although Zapata-Dominguez wishes to preserve these arguments for
further review, he concedes that they are foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224 (1998), which was not overruled by Apprendi, 530
U.S. at 490. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.
2005). Zapata-Dominguez has thus failed to show error, plain or otherwise, in
this regard. See Puckett, 556 U.S. at 135.
      Next, Zapata-Dominguez challenges the standard supervised release
condition requiring him to “permit a probation officer to visit [him] at any time
at home or elsewhere and permit confiscation of any contraband observed in
plain view by the probation officer.” Zapata-Dominguez contends that the
condition is substantively unreasonable and constitutionally overbroad and
that the district court failed to provide reasons supporting its imposition. We
recently rejected an identical challenge to the same standard condition on plain
error review. See United States v. Cabello, 916 F.3d 543, 544 (5th Cir. 2019)
(per curiam). In Cabello, we explained that there was no plain error precisely
because “[w]e have not addressed the constitutionality or substantive
reasonableness of the challenged standard visitation condition or whether a
district court must explain its reasons for imposing a standard condition of
supervised release.” Id. (brackets omitted) (quoting United States v. Ferrari,
743 F. App’x 560, 561 (5th Cir. 2018) (per curiam)). Accordingly, the district



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                                No. 18-10975

court did not plainly err in imposing the standard visitation condition in this
case. See id.
      The judgment of the district court is AFFIRMED.




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