IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20504 Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

EBENOR ADONAY CALIX-ZAPATA

Defendant - Appellant

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-229-ALL -------------------- February 7, 2003

Before KING, Chief Judge,and DeMOSS and BENAVIDES, Circuit Judges.

PER CURIAM:*

Ebenor Adonay Calix-Zapata appeals his conviction under

for being present illegally in the United States

following deportation and conviction for an aggravated felony.

Calix-Zapata was found guilty in a bench trial and was sentenced

to seventy months’ imprisonment and three years’ supervised

release.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20504 -2-

Calix-Zapata contends that he was denied the right to a jury

trial. He asserts that FED. R. CRIM. P. 23(a) requires a written

waiver of the right to a jury trial, that a written waiver was

not obtained, and that he did not execute an express and

intelligent oral waiver. He argues that his case is controlled

by United States v. Mendez,

(5th Cir. 1997), and

that the error is a structural defect of constitutional dimension

that requires an automatic reversal.

Rule 23(a), FED. R. CRIM. P., requires that in criminal

cases, the accused be afforded a trial by jury unless the right

is waived “in writing with the approval of the court and the

consent of the government.” FED. R. CRIM. P. 23(a); see U.S.

CONST. Art. III, § 2, cl. 3. Nevertheless, we recognize a

“limited exception” to the requirement of a written waiver.

Mendez,

.

Calix-Zapata’s case is distinguishable from the facts in

Mendez. Mendez was from a poor family in rural Columbia, could

not speak or understand English, did not understand the purpose

of a jury, had been in this country only a few days before his

arrest, claimed to have not spoken with his lawyer about a

waiver, and did not have an opportunity to voice an objection to

the dismissal of the venire.

Calix-Zapata addressed the

district court in English, lived in the United States for over

ten years prior to the instant offense, is familiar with the No. 02-20504 -3-

American justice system, and has been trained and employed as a

welder.

The district court did not proceed with a bench trial in

Calix-Zapata’s case as if there was no other available option.

The district court relied on the Federal Public Defender’s

representation that Calix-Zapata wished to proceed with a bench

trial on stipulated facts. When Calix-Zapata expressed

uncertainty regarding the proceedings, the district court

entertained his questions and concerns, explained his options,

allowed him to confer with counsel, and allowed him to make an

informed and unpressured choice. The district court ascertained

on the record that Calix-Zapata chose to proceed with the bench

trial. A review of the record reveals that Calix-Zapata

intelligently waived his right to a jury trial and that his case

falls within the limited exception described in United States v.

Page,

(5th Cir. 1981).

Calix-Zapata challenges the denial of his motion to suppress

evidence of his administrative deportation. He argues that the

deportation was conducted in violation of his rights to due

process. He asserts that the absence of a record of the

administrative deportation and the fact that a non-judicial

Immigration Service official presided over the deportation were

structural errors that rendered the proceedings so unfair that he

does not have to show actual prejudice. He acknowledges that his

argument is foreclosed by our opinion in United States v. No. 02-20504 -4-

Benitez-Villafuerte,

(5th Cir. 1999), but he seeks

to preserve the issue for Supreme Court review.

Calix-Zapata contends that the felony conviction that

resulted in his increased sentence under

(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,

(1998), but he seeks to preserve the issue

for Supreme Court review in light of the decision in Apprendi

v. New Jersey,

(2000).

The judgment of the district court is AFFIRMED.