United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 29, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-21076
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIME LOPEZ-FLORES, also known as Jamie Flores,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-178-ALL
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Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Jaime Lopez-Flores (“Lopez”) was convicted of being
unlawfully present in the United States. He appeals the district
court’s imposition of a $2,000 fine, arguing that the district
court erred reversibly by imposing a fine based on his ability to
earn money while in prison. Lopez argues that 28 C.F.R.
§ 345.35(a) prohibits deportable aliens from placement in Federal
Prison Industries (“FPI”) jobs.
*
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that this opinion should not be published and is not precedent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. 02-21076
-2-
Because Lopez does not argue and has not demonstrated that
he is “currently under an order of deportation, exclusion, or
removal,” he has not shown that he is ineligible for an FPI job
assignment under 28 C.F.R. § 345.35(a). The district court's
determination that Lopez has the future ability to pay the fine
through prison earnings is not clearly erroneous. Moreover, the
fact of deportability alone does not prevent the imposition of a
fine. United States v. Thompson, 227, F.3d (2d Cir. 2000).
Lopez also argues, for the first time on appeal, that 8
U.S.C. § 1326(b) is unconstitutional because it treats a prior
conviction for a felony or aggravated felony as a sentencing
factor and not as an element of the offense. Lopez’s argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235, 239-47 (1998). Apprendi v. New Jersey, 530 U.S. 466, 489-90
(2000), did not overrule that decision. See United States v.
Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). Thus, the district
court did not err in sentencing Lopez under 8 U.S.C. § 1326(b).
The judgment of the district court is AFFIRMED.