IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21297
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ABRAHAM AVILES-FUENTES,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-616-ALL
--------------------
August 14, 2002
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Abraham Aviles-Fuentes (“Aviles”) appeals his guilty-plea
conviction and sentence for illegal reentry following deportation
after having been convicted of an aggravated felony, pursuant to 8
U.S.C. §§ 1326(a), (b)(2). He argues that the supervised-release
provision in the written judgment requiring him to pay the costs of
court-ordered drug treatment and testing conflicts with the
district court’s oral pronouncements at sentencing and,
*
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that this opinion should not be published and is not precedent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. 01-21297
-2-
alternatively, that the provision constitutes an impermissible
delegation of authority to the probation officer charged with
determining Aviles’ ability to pay such costs. He also argues, for
the first time on appeal, that 8 U.S.C. § 1326(b)(2) is facially
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000).
Aviles’ arguments concerning the cost-payment provision in the
written judgment are foreclosed by United States v. Warden, 291
F.3d 363 (5th Cir. 2002). In Warden, under substantially similar
facts, this court held that the cost-payment condition in the
written judgment did not conflict with the oral sentence and that
the provision was not an impermissible delegation of authority to
the probation officer. Warden, 291 F.3d at 365-66.
Aviles acknowledges that his Apprendi issue is foreclosed by
Almendarez-Torres, 523 U.S. 224 (1998), but he raises the issue to
preserve it for Supreme Court review. Apprendi did not overrule
Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; United States
v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert. denied, 531
U.S. 1202 (2001). This court 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).
AFFIRMED.