United States v. Pena-Gonzalez ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21212
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL PENA-GONZALEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-504-1
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October 29, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Miguel Pena-Gonzalez (“Pena”) appeals the sentence he
received following his guilty-plea conviction for illegal
reentry, in violation of 8 U.S.C. § 1326. Pena argues that the
district court impermissibly delegated the authority to determine
his ability to pay for the cost of alcohol/drug treatment, which
was ordered as a special condition of his supervised release, to
*
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that this opinion should not be published and is not precedent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. 01-21212
-2-
the Probation Department. This argument is foreclosed by United
States v. Warden, 291 F.3d 363, 365-66 (5th Cir. 2002).
Pena additionally argues that his sentence was improperly
enhanced by his prior aggravated felony conviction under 8 U.S.C.
§ 1326(b). He contends that the enhancement was improper and
that 8 U.S.C. § 1326 is unconstitutional because his prior
conviction was an element of the offense which must have been
included in his indictment. As Pena concedes, this argument is
similarly foreclosed. See Almendarez-Torres v. United States,
523 U.S. 224 (1998); see also United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000), cert. denied, 531 U.S. 1202 (2001).
The district court’s judgment is AFFIRMED.