United States v. Salazar-Avila ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21170
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS SALAZAR-AVILA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-600-ALL
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October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Jesus Salazar-Avila was convicted for being an alien found
unlawfully in the United States following deportation and has
appealed his conviction and sentence. Salazar contends that his
sentence should be vacated because a special condition in the
written judgment requiring him to bear the expense of
drug/alcohol treatment was not orally pronounced at sentencing.
Salazar contends in the alternative that the district court
delegated impermissibly to the Probation Office its authority 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this opinion should not be published and is not precedent except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. 01-21170
-2-
set the amount and timing of payments for the drug/alcohol
treatment services. Because these arguments were rejected by the
court in United States v. Warden, 291 F.3d 363, 365-66 (5th Cir.
2002), Salazar cannot show that the district court abused its
discretion in imposing the special condition. See id. at 365 n.1
(standard of review).
Salazar argues that the “aggravated felony” provision of
8 U.S.C. § 1326(b)(2) is unconstitutional in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000). Salazar concedes that his
argument is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224 (1998). See United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000), cert. denied, 531 U.S. 1202 (2001). He
nevertheless seeks to preserve the issue for Supreme Court
review. The judgment is
AFFIRMED.