United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 23, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-21292
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VALENTINE CHAVEZ-VASQUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-311-1
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Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Valentine Chavez-Vasquez (“Chavez”) appeals the
sentence imposed following his guilty plea for illegal re-entry
into the United States following deportation. Chavez appeals the
district court’s imposition of a $500 fine, arguing that the
district court erred reversibly by imposing a fine based on his
ability to earn money while in prison. Chavez argues that 28
C.F.R. § 345.35(a) prohibits deportable aliens from placement 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that this opinion should not be published and is not precedent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. 02-21292
-2-
Federal Prison Industries (“FPI”) jobs. Chavez also contends
that U.S.C. § 1326(b) is unconstitutional based on Apprendi
v. New Jersey, 530 U.S. 466 (2000).
Chavez did not raise below the issue of inability to
work in prison, so we will review it for plain error only.
Because Chavez 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 in ineligible for an FPI job assignment
under 28 C.F.R. § 345.35(a). The district court’s determination
that Chavez has the future ability to pay the fine through prison
earnings is not clearly, much less plainly, erroneous.
Chavez’ contention that the enhancement provisions in
8 U.S.C. § 1326(b) is unconstitutional lacks merit because
Apprendi did not overrule Almendarez-Torres v. United States,
523 U.S. 24 (1998). See Apprendi, 530 U.S. at 489-90; United
States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
For the foregoing reasons, Chavez’ sentence is AFFIRMED.