                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                             DECEMBER 13, 2006
                               No. 06-11515                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                      D. C. Docket No. 05-20768-CR-AJ

UNITED STATES OF AMERICA,


                                                        Plaintiff-Appellee,

                                     versus

CARLOS ALBERTO MARTINEZ-ZAPATA,

                                                        Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                             (December 13, 2006)

Before DUBINA, CARNES and KRAVITCH, Circuit Judges.

PER CURIAM:

     Carlos Alberto Martinez-Zapata (“Zapata”) pleaded guilty to illegal re-entry,
in violation of 8 U.S.C. § 1326, after he was found in the United States having

been deported twice previously. The statutory maximum sentence for his offense

was 20 years imprisonment.

      Calculating the sentencing guidelines range, the probation officer assigned a

base offense level of 8 under U.S.S.G. § 2L1.2, with a 16-level enhancement,

§ 2L1.2(b)(1)(A), because Zapata had a prior conviction for trafficking cocaine.

With a 2-level reduction for acceptance of responsibility, the adjusted offense level

was 21. Zapata had a criminal history category IV, resulting in a guidelines range

of 57 to 71 months imprisonment.

      Zapata made no objections to the calculations, but requested that the court

sentence him below the range because his criminal history category over-

represented his past and a lesser sentence would be sufficient deterrence.

Recognizing that the guidelines were advisory, and considering the sentencing

factors in 18 U.S.C. § 3553(a), the district court sentenced Zapata to 57 months

imprisonment. Zapata now appeals, challenging the 16-level enhancement under

the Fifth and Sixth Amendments because the prior conviction was not charged in

the indictment or admitted at the plea colloquy.

      Because Zapata raises this issue for the first time on appeal, we review for

plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert.



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denied, 545 U.S. 1127 (2005). Thus, Zapata must show (1) there is an error;

(2) that is plain or obvious; (3) affecting the defendant’s substantial rights in that it

was prejudicial and not harmless; and (4) that seriously affects the fairness,

integrity, or public reputation of the judicial proceedings. Id.

      Zapata cannot show plain error. First, this court has rejected the argument

that prior convictions under § 2L1.2(b)(1)(A) must be alleged in the indictment.

United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315-16 (11th Cir. 2005).

Moreover, as Zapata concedes, Almendarez-Torres v. United States, 523 U.S. 224

(1998), holding that prior convictions need not be charged in an indictment or

proven beyond a reasonable doubt, remains good law. Id.

      Second, by not objecting to the presentence investigation report, Zapata

admitted the facts contained therein, including his prior conviction. United States

v. Wade, 458 F.3d 1273, 1277 (11th Cir.), petition for cert. filed, (Nov. 01, 2006)

(No. 06-7622).

      Finally, there is no error under United States v. Booker, 543 U.S. 220

(2005), as Zapata was not sentenced under a mandatory guidelines scheme.

      Accordingly, we AFFIRM.




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