                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                                                               July 18, 2003
               IN THE UNITED STATES COURT OF APPEALS
                                                         Charles R. Fulbruge III
                        FOR THE FIFTH CIRCUIT                    Clerk



                            No. 01-21154
                          Summary Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

ANDRES BADILLO-LEIJA,

                                          Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. H-01-CR-316-1
                      --------------------



Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

     We recall the mandate, withdraw the opinion issued May 7,

2003, and substitute the following:



     Andres Badillo-Leija (“Badillo”) appeals his sentence for il-

legal reentry after deportation, a violation of 8 U.S.C. § 1326.


     *
        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that this opinion should not be published and is not precedent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. 01-21154
                                   -2-

He argues that the district court erred (1) by enhancing his of-

fense level by eight levels pursuant to U.S.S.G. § 2L1.2(b)(1)(C),

(2) by   departing   upward   by   four   levels   pursuant   to   U.S.S.G.

§ 4A1.3, and (3) by including special conditions of supervised re-

lease in its written judgment that were not orally pronounced at

the sentencing hearing.

     Badillo argues that his felony convictions for possession of

cocaine were not “aggravated felonies” warranting an eight-level

enhancement but were instead “other felonies” warranting only a

four-level enhancement. A prior conviction is an aggravated felony

“if (1) the offense was punishable under the Controlled Substances

Act and (2) it was a felony.”      United States v. Hinojosa-Lopez, 130

F.3d 691, 694 (5th Cir. 1997).       Badillo’s arguments were rejected

in United States v. Caicedo-Cuero, 312 F.3d 697, 706-11 (5th Cir.

2002), cert. denied, 123 S. Ct. 1948 (2003).

     We affirm an upward departure “if (1) the [district] court

gives acceptable reasons for departing and (2) the extent of the

departure is reasonable.”     United States v. Route, 104 F.3d 59, 64

(5th Cir. 1997).     The district court provided acceptable reasons

for departing upward pursuant to § 4A1.3 by citing Badillo’s five

previous felony convictions and his history of recidivism, and the

four-level departure and additional 16 months’ imprisonment were

reasonable.

     Badillo argues that the district court erred by including in

the written judgment special conditions of supervised release that
                           No. 01-21154
                                -3-

were not stated at the sentencing hearing.   We recently held that

the inclusion in the written judgment of a condition requiring ad-

ditional drug testing, even if that condition was not orally pro-

nounced, does not create a conflict between the oral and written

judgments.   See United States v. Vega, No. 01-41019, 2003 WL

21257969 (5th Cir. June 2, 2003) (per curiam).

     Badillo’s argument that the district court impermissibly dele-

gated to the Probation Department the authority to determine his

ability to pay is foreclosed by United States v. Warden, 291 F.3d

363, 364-65 & n.1 (5th Cir. 2002), cert. denied, 123 S. Ct. 35

(2003).

     AFFIRMED.
