                                                                                      United States Court of Appeals
                                                                                               Fifth Circuit
                                                                                            F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                              April 19, 2004
                               FOR THE FIFTH CIRCUIT
                                                                                         Charles R. Fulbruge III
                                                                                                 Clerk
                                            No. 03-50526
                                          Summary Calendar



UNITED STATES OF AMERICA,

                                                                                       Plaintiff-
                                                           Appellee,

                                                  versus

GABRIEL GAMA-ANTUNIZ, also known as
Juan Valentin-Mendoza,

                                                                                     Defendant-
                                                           Appellant.

                          --------------------------------------------------------
                            Appeal from the United States District Court
                                   for the Western District of Texas
                                  USDC No. DR-02-CR-640-1-AML
                           -------------------------------------------------------

Before SMITH, DeMOSS AND STEWART, Circuit Judges.

PER CURIAM:*

       Gabriel Gama-Antuniz appeals his conviction and sentence for being an alien unlawfully found

in the United States after deportation after having been convicted of an aggravated felony in violation

of 8 U.S.C. § 1326(a).




       *
           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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       For the first time on appeal, Gama-Antuniz argues that the district court’s imposition of a

$1,000 fine was reversible error in light of the finding in the Presentence Investigation Report that

he is unable to pay a fine. The district court’s determination that Gama-Antuniz has the future ability

to pay the fine through prison earnings is not plain error. See United States v. Rodriguez, 15 F.3d

408, 414-17 (5th Cir. 1994).

       Also for the first time on appeal, Gama-Antuniz argues that his guilty plea is invalid because

the district court failed to comply with the requirements of FED. R. CRIM. P. 11 in failing to explain

the nature of the offense and determine that there was an adequate factual basis for his plea. Gama-

Antuniz contends that the district court should have admonished him that his prior aggravated felony

conviction would be used to enhance his sentence under 8 U.S.C. § 1326(b)(2).

       The requirement of FED. R. CRIM. P. 11(b)(1)(G) to inform the defendant of the nature of the

charge is fulfilled when the defendant is informed of the elements of the offense charged. United

States v. Lujano-Perez, 274 F.3d 219, 224 (5th Cir. 2001). In Almendarez-Torres v. United States,

523 U.S. 224, 226 (1998), the Supreme Court held that the enhanced penalties in 8 U.S.C. § 1326(b)

are sentencing provisions, and not elements of the substantive crime set forth in 8 U.S.C. § 1326(a).

       Gama-Antuniz’s indictment set forth the requisite elements of his violation of 8 U.S.C.

§ 1326(a). His indictment was read at his rearraignment and he affirmed that he understood the

charge and that he had discussed the charge with his attorney.             Also at Gama-Antuniz’s

rearraignment, the Government prosecutor recited the factual basis for Gama-Antuniz’s plea, which

included all of the elements of 8 U.S.C. § 1326(a), and Gama-Antuniz admitted to the facts as true.

There was no error. See Lujano-Perez, 274 F.3d at 225-26; United States v. Gobert, 139 F.3d 436,

439 (5th Cir. 1998).


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       Gama-Antuniz argues further that 8 U.S.C. § 1326(b) is unconstitutional because it does not

require the fact of a prior felony or aggravated felony conviction to be charged in the indictment and

proved beyond a reasonable doubt. He argues further that because his indictment did not allege the

fact of his prior aggravated felony conviction as a separate element of the offense, the indictment

charged him only with an offense under 8 U.S.C. § 1326(a) rather than 8 U.S.C. § 1326(b), and his

maximum punishment is limited to two years.

       Gama-Antuniz attempts to distinguish Almendarez-Torres factually on the ground that the

Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 487-88 (2000), limited its holding in

Almendarez-Torres to cases in which the defendant specifically pleaded guilty to the predicate felony

used to enhance his sentence under § 1326. Gama-Antuniz contends that he has not pleaded guilty

in this case to having committed an aggravated felony prior to his deportation. Alternatively, Gama-

Antuniz asserts that, if we should decide that his arguments are foreclosed by Almendarez-Torres,

he wishes to preserve the issues for Supreme Court review in light of Apprendi, which he maintains

cast into doubt the continued validity of Almendarez-Torres.

       Apprendi did not overrule Almendarez-Torres or limit its holding to cases in which the

defendant admits having committed the predicate felony prior to pleading guilty. See Apprendi, 530

U.S. at 487-90; see also United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). This court

therefore must follow the precedent set in Almendarez-Torres “unless and until the Supreme Court

itself determines to overrule it.” Dabeit, 231 F.3d at 984 (internal quotation and citation omitted).

Accordingly, Gama-Antuniz’s arguments based upon Apprendi are foreclosed.

       Thus, Gama-Antuniz has not established error, plain or otherwise, with respect to his

conviction or sentence under § 1326, and his conviction and sentence are AFFIRMED.


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