                                                                                        United States Court of Appeals
                                                                                                 Fifth Circuit
                                                                                              F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                              October 14, 2004
                                   FOR THE FIFTH CIRCUIT
                                                                                           Charles R. Fulbruge III
                                                                                                   Clerk


                                            No. 03-21081
                                          Summary Calendar



UNITED STATES OF AMERICA,

                                                                                         Plaintiff-
                                                          Appellee,

                                                 versus

PABLO RODRIGUEZ, JR.,
                                                                                       Defendant-
                                                          Appellant.

                       -------------------------------------------------------------
                           Appeal from the United States District Court
                                  for the Southern District of Texas
                                       USDC No. H-03-CR-3-6
                       ------------------------------------------------------------

Before WIENER, BENAVIDES AND STEWART, Circuit Judges.

PER CURIAM:*

       Pablo Rodriguez, Jr., appeals from his guilty-plea conviction for aiding and abetting the

possession with intent to distribute 100 kilograms or more of marijuana. In addition to sentencing

Rodriguez to 70 months’ imprisonment and five years’ supervised release, the district court ordered

the Bureau of Prisons (“BOP”) to send 75% of Rodriguez’s prison earnings to the mother of

Rodriguez’s children in order to help satisfy his child-support obligation.

       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       Rodriguez’s motion for leave to file a supplemental brief raising a new issue is GRANTED.

       Rodriguez argues: (1) that the district court’s order garnishing his prison earnings exceeded

the statutory maximum sentence authorized by 21 U.S.C. § 841; (2) that 21 U.S.C. § 841(a) and (b)

are facially unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000); and (3) that his

sentence was invalid under Blakely v. Washington, 124 S. Ct. 2531 (2004). As conceded by

Rodriguez, his two latter argument s are foreclosed by precedent and are raised solely to preserve

them for further review. See United States v. Pineiro, 377 F.3d 464, 465 (5th Cir. 2004), petition

for cert. filed, (U.S. July 14, 2004) (No. 04-5263); United States v. Slaughter, 238 F.3d 580, 582 (5th

Cir. 2000).

       Although Rodriguez did not object to the district court’s order, we review de novo whether

the sentence exceeds the statutory maximum term. See United States v. Ferguson, 369 F.3d 847, 849

(5th Cir. 2004). The district court’s order to the BOP must be vacated because it was not authorized

by 21 U.S.C. § 841. See United States v. Chandler, 125 F.3d 892, 894 (5th Cir. 1997). The district

court’s judgment is MODIFIED to strike the order requiring the BOP to send 75% of Rodriguez’s

prison earnings to the mother of his children. The dist rict court’s judgment is AFFIRMED AS

MODIFIED.

       MOTION TO FILE SUPPLEMENTAL BRIEF GRANTED; JUDGMENT MODIFIED;

AFFIRMED AS MODIFIED.




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