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United States v. Perez-Bollano ( 2003 )


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  •                                                         United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                 October 30, 2002
Charles R. Fulbruge III
Clerk
No. 02-20054
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM ERNESTO PEREZ-BOLLANO, also
known as William Bollano-Perez, also
known as William Perez, also known as
William Ernesto Perez, also known as
William Ernesto Bolan Perez, also known
as William Perez-Bollanos,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-113-1
- - - - - - - - - -
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Willam Ernesto Perez-Bollano (Perez) appeals his conviction
after a bench trial of illegal re-entry in violation of
    8 U.S.C. § 1326
    (b)(2).   He raises three issues on appeal: (1) that the
district court erred by delegating authority to the United States
Probation Office to determine his ability to pay the costs of the
*
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that this opinion should not be published and is not precedent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. 02-20054
-2-
court-ordered drug and alcohol treatment program; (2) that
    8 U.S.C. § 1326
    (b)(2) is unconstitutional because it does not
require a prior aggravated felony offense to be proven to the
factfinder beyond a reasonable doubt; and (3) that the evidence
of his prior deportation should have been suppressed because the
removal procedures violated due process.   Perez concedes that the
latter two arguments are foreclosed by this court’s precedent but
raises these issues in order to preserve possible Supreme Court
review.
Apprendi v. New Jersey,
    530 U.S. 466
     (2000), did not
overrule Almendarez-Torres v. United States,
    523 U.S. 224
     (1998).
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).   Accordingly, Perez’s argument that
    8 U.S.C. § 1326
    (b)(2)
is unconstitutional lacks merit.
In United States v. Benitez-Villafuerte,
    186 F.3d 651
    , 656-
59 (5th Cir. 1999), this court held that the administrative
removal procedures in
    8 U.S.C. § 1228
     do not violate due process
and that in order to collaterally attack a prior deportation
proceeding in a prosecution under
    8 U.S.C. § 1326
     a defendant is
required to establish that there is a reasonable likelihood that
he would not have been deported but for the alleged errors in the
deportation proceeding.   Perez has conceded that he cannot meet
this standard.   Therefore, this issue is foreclosed.
No. 02-20054
-3-
In United States v. Warden,
    291 F.3d 363
     (5th Cir. 2002), we
recently rejected an appellant’s assertion that allowing a
probation officer to determine the appellant’s ability to pay the
costs of court-ordered treatment programs was an impermissible
delegation of authority.   Thus, Perez’s first argument also is
foreclosed by circuit precedent.
    Id. at 366
    .
AFFIRMED.