                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           July 29, 2003

                       FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
                                                                  Clerk


                           No. 02-21076
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,
versus

JAIME LOPEZ-FLORES, also known as Jamie Flores,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. H-02-CR-178-ALL
                      --------------------

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

     Jaime Lopez-Flores (“Lopez”) was convicted of being

unlawfully present in the United States.    He appeals the district

court’s imposition of a $2,000 fine, arguing that the district

court erred reversibly by imposing a fine based on his ability to

earn money while in prison.   Lopez argues that 28 C.F.R.

§ 345.35(a) prohibits deportable aliens from placement in Federal

Prison Industries (“FPI”) jobs.


     *
        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that this opinion should not be published and is not precedent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. 02-21076
                                -2-

     Because Lopez does not argue and has not demonstrated that

he is “currently under an order of deportation, exclusion, or

removal,” he has not shown that he is ineligible for an FPI job

assignment under 28 C.F.R. § 345.35(a).   The district court's

determination that Lopez has the future ability to pay the fine

through prison earnings is not clearly erroneous.   Moreover, the

fact of deportability alone does not prevent the imposition of a

fine.   United States v. Thompson, 227, F.3d (2d Cir. 2000).

     Lopez also argues, for the first time on appeal, that 8

U.S.C. § 1326(b) is unconstitutional because it treats a prior

conviction for a felony or aggravated felony as a sentencing

factor and not as an element of the offense.   Lopez’s argument is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235, 239-47 (1998).   Apprendi v. New Jersey, 530 U.S. 466, 489-90

(2000), did not overrule that decision.   See United States v.

Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).   Thus, the district

court did not err in sentencing Lopez under 8 U.S.C. § 1326(b).

     The judgment of the district court is AFFIRMED.
