* 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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-20008

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE CENOVIO RAMIREZ,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-01-CR-366-ALL

--------------------

August 21, 2002

Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.

PER CURIAM:*

Jose Cenovio Ramirez appeals the sentence imposed following

his guilty plea conviction of being found in the United States

after deportation in violation of 8 U.S.C. § 1326. Ramirez

argues that his sentence was improperly enhanced pursuant to

8 U.S.C. § 1326(b)(2) based on his prior deportation following an

aggravated felony conviction. He contends that the sentencing
No. 02-20008

-2-

provision is unconstitutional. He asks that his sentence be

vacated and his case remanded for resentencing under 8 U.S.C.

§ 1326(a). 

In Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998), the Supreme Court held that the enhanced penalties in

8 U.S.C. § 1326(b) are sentencing provisions, not elements of

separate offenses. The Court further held that the sentencing

provisions do not violate the Due Process Clause. Id. at 239-47. 

Ramirez acknowledges that his argument is foreclosed by

Almendarez-Torres, but asserts that the decision has been called

into doubt by Apprendi v. New Jersey, 530 U.S. 466, 489-90

(2000). He seeks to preserve his argument for further review.

Apprendi did not overrule Almendarez-Torres. 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). This court

must follow Almendarez-Torres “unless and until the Supreme Court

itself determines to overrule it.” Id. at 984 (internal

quotation marks and citation omitted). 

Ramirez also argues that the district court impermissibly

delegated to the Probation Office its authority to set the amount

and timing of payments for the cost of a drug and alcohol

detection and treatment program, which the district court

required as a special condition of Ramirez’s supervised release. 

However, the district court did not delegate to the Probation

Office the authority to set the amount and timing of Ramirez’s
No. 02-20008

-3-

cost payments. The district court directed the Probation Office

to determine Ramirez’s ability to pay the cost of treatment. 

To the extent Ramirez challenges the district court’s

delegation of that factfinding task, his argument is foreclosed. 

In United States v. Warden, 291 F.3d 363, 365-66 (5th Cir. 2002),

this court held that allowing a probation officer to determine a

prisoner’s ability to pay the costs of court-ordered treatment

programs was not an impermissible delegation of authority. 

Ramirez acknowledges that his argument is foreclosed by Warden. 

He raises the argument to preserve it for further review. 

The judgment of the district court is AFFIRMED. 

The Government has moved for a summary affirmance in lieu of

filing an appellee’s brief. In its motion, the Government asks

that the judgment of the district court be affirmed and that an

appellee’s brief not be required. The motion is GRANTED. 

AFFIRMED; MOTION GRANTED.