          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should not be published and is not precedent except under the limited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.




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