United States v. Badillo-Leija , 70 F. App'x 771 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
July 18, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 01-21154
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRES BADILLO-LEIJA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-316-1
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Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
We recall the mandate, withdraw the opinion issued May 7,
2003, and substitute the following:
Andres Badillo-Leija (“Badillo”) appeals his sentence for il-
legal reentry after deportation, a violation of 8 U.S.C. § 1326.
*
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that this opinion should not be published and is not precedent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. 01-21154
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He argues that the district court erred (1) by enhancing his of-
fense level by eight levels pursuant to U.S.S.G. § 2L1.2(b)(1)(C),
(2) by departing upward by four levels pursuant to U.S.S.G.
§ 4A1.3, and (3) by including special conditions of supervised re-
lease in its written judgment that were not orally pronounced at
the sentencing hearing.
Badillo argues that his felony convictions for possession of
cocaine were not “aggravated felonies” warranting an eight-level
enhancement but were instead “other felonies” warranting only a
four-level enhancement. A prior conviction is an aggravated felony
“if (1) the offense was punishable under the Controlled Substances
Act and (2) it was a felony.” United States v. Hinojosa-Lopez, 130
F.3d 691, 694 (5th Cir. 1997). Badillo’s arguments were rejected
in United States v. Caicedo-Cuero, 312 F.3d 697, 706-11 (5th Cir.
2002), cert. denied, 123 S. Ct. 1948 (2003).
We affirm an upward departure “if (1) the [district] court
gives acceptable reasons for departing and (2) the extent of the
departure is reasonable.” United States v. Route, 104 F.3d 59, 64
(5th Cir. 1997). The district court provided acceptable reasons
for departing upward pursuant to § 4A1.3 by citing Badillo’s five
previous felony convictions and his history of recidivism, and the
four-level departure and additional 16 months’ imprisonment were
reasonable.
Badillo argues that the district court erred by including in
the written judgment special conditions of supervised release that
No. 01-21154
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were not stated at the sentencing hearing. We recently held that
the inclusion in the written judgment of a condition requiring ad-
ditional drug testing, even if that condition was not orally pro-
nounced, does not create a conflict between the oral and written
judgments. See United States v. Vega, No. 01-41019, 2003 WL
21257969 (5th Cir. June 2, 2003) (per curiam).
Badillo’s argument that the district court impermissibly dele-
gated to the Probation Department the authority to determine his
ability to pay is foreclosed by United States v. Warden, 291 F.3d
363, 364-65 & n.1 (5th Cir. 2002), cert. denied, 123 S. Ct. 35(2003).
AFFIRMED.