IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20087
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFONSO CORNEJO-JAIMES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-278-ALL
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August 20, 2002
Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.
PER CURIAM:*
Alfonso Cornejo-Jaimes (Cornejo) appeals his sentence for
the offense of illegal reentry following deportation after having
been convicted of an aggravated felony in violation of 8 U.S.C.
§ 1326(a) and (b)(2). Cornejo contends that the district court
plainly erred when it delegated to the probation officer the
authority to determine his ability to pay the costs of drug abuse
detection. Cornejo’s argument is foreclosed by our opinion in
*
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that this opinion should not be published and is not precedent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. 02-20087
-2-
United States v. Warden, 291 F.3d 363, 365-66 (5th Cir. 2002).
Cornejo also argues that the “aggravated felony provision”
of 8 U.S.C. § 1326(b)(2) is unconstitutional on its face and as
applied. Cornejo acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), but
asserts that the decision has been cast into doubt by Apprendi v.
New Jersey, 530 U.S. 466, 489-90 (2000). He seeks to preserve
his argument for possible further 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 Almendarez-Torres “unless and until the Supreme Court
itself determines to overrule it.” Dabeit, 231 F.3d at 984.
Moreover, Cornejo’s indictment did allege that he had been
deported after having been convicted of an aggravated felony, in
violation of 8 U.S.C. § 1326(b)(2). Thus, to the extent that he
contends that the indictment failed to allege his prior
aggravated felony conviction, his argument lacks factual support
in the record.
AFFIRMED.