                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                     REVISED JANUARY 4, 2005
                                                           December 20, 2004

              IN THE UNITED STATES COURT OF APPEALS     Charles R. Fulbruge III
                                                                Clerk
                      FOR THE FIFTH CIRCUIT



                           No. 03-21055
                         Summary Calendar



     UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

          versus


     OSCAR HUMBERTO GARCIA-MEJIA,

                                         Defendant-Appellant.




           Appeal from the United States District Court
                for the Southern District of Texas


Before GARWOOD, JOLLY and CLEMENT, Circuit Judges.

PER CURIAM:

     Oscar Humberto Garcia-Mejia (“Garcia-Mejia”) is a citizen of

Mexico.   He was deported on July 25, 1997 following his release

from state prison on a conviction for burglary of a habitation.       He

was then “found” in the United States by the federal government on

April 13, 2000 while again in prison in Texas for burglary.        Upon

his release from prison on July 18, 2002, he was taken into custody

by immigration officials who determined that he had not obtained
permission from the Attorney-General to return to the United

States. A one-count indictment was filed in the district court for

the southern district of Texas charging Garcia-Mejia under 8 U.S.C.

§ 1326(a) and (b)(2) with illegal re-entry by a previously deported

alien subsequent to a conviction for an aggravated felony.                            He

entered a plea of guilty on October 29, 2002 and was sentenced on

October   21,        2003   to,   inter        alia,    seventy-seven    months      of

imprisonment and three years of supervised release.

     Garcia-Mejia challenges his sentence on two grounds.                      First,

he argues, as he did below,              that the district court abused its

discretion      by     prohibiting       him     from    possessing     “a   firearm,

destructive     device,      or   any    other     dangerous   weapon”       while    on

supervised release because the term “other dangerous weapon” is

both impermissibly vague and overbroad.1                  Second, he argues, for

the first time on this appeal, that the “felony” and “aggravated

felony”   provisions        of    8     U.S.C.     §    1326(b)(1)    and    (2)     are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000).

     Garcia-Mejia first challenges the condition of supervised


     1
       Though the condition in question appears in the guidelines
as a “special condition,” see U.S.S.G. § 5D1.3(d)(1), it is
considered akin to a “standard condition” as those are set forth in
U.S.S.G. § 5D1.3(b) and (c). See United States v. Torres-Aguilar,
352 F.3d 934, 937 (5th Cir. 2003).        This court reviews the
imposition of conditions of supervised release for an abuse of
discretion. United States v. Paul, 274 F.3d 155, 165 (5th Cir.
2001).


                                           2
release    prohibiting   him     from   possessing      dangerous    weapons   by

arguing that it is overly broad.2            The crux of his argument is that

the term “dangerous weapon,” as it is defined in the guidelines,

plausibly     includes   everyday       items    like   eating     utensils    and

construction tools.3 The condition of supervised release, in other

words,     seemingly   applies    to    things    that,   though    potentially

dangerous in some sense, are, by virtue of their ubiquity and

ordinariness, an almost unavoidable part of everyday life. Garcia-

Mejia’s claim that the condition of supervised release is overly

broad is in effect a claim that the condition fails to satisfy the

statutory requirement, codified at 18 U.S.C. § 3583(d)(2) and

U.S.S.G.   § 5D1.3(b), that every condition of supervised release

involves “no greater deprivation of liberty than is reasonably

necessary in light of the need to protect the public and prevent


     2
       Garcia-Mejia, whose sentence is for a felony conviction and
who has a prior felony conviction for a crime of violence, United
States v. Rayo-Valdez, 302 F.3d 314, 317 (5th Cir.), cert. denied,
537 U.S. 1095 (2002), and an otherwise extensive criminal history,
does not challenge the district court’s conclusion that he is
properly subject to a condition of supervised release under U.S.S.G.
§ 5B1.3(d)(1) prohibiting him from possessing dangerous weapons.
Instead, he simply objects that this prohibition is overly broad
and vague.
     3
       The guidelines provide that: “‘Dangerous weapon’ means (i)
an instrument capable of inflicting death or serious bodily injury;
or (ii) an object that is not an instrument capable of inflicting
death or serious bodily injury but (I) closely resembles such an
instrument; or (II) the defendant uses the object in a manner that
created the impression that the object was such an instrument (e.g.
a defendant wrapped a hand in a towel during a bank robbery to
create the appearance of a gun).”       U.S.S.G. § 1B1.1, comment,
n.1(D).

                                         3
recidivism.”    Paul, 274 F.3d at 165 n. 12.

     Garcia-Mejia also objects to the condition of supervised

release on the ground of vagueness.            He contends that he cannot

reasonably ascertain what sort of conduct is proscribed by the

prohibition on the possession of a “dangerous weapon.”              See id. at

166 (stating that offenders subject to conditions of supervised

release are entitled to “fair notice” of what is prohibited).

     We addressed similar arguments in United States v. Paul.                In

Paul, the district court imposed a series of broad prohibitions as

conditions of supervised release on a defendant convicted of child

pornography crimes.      Id. at 164-172.        Paul, for example, was to

avoid “places, establishments and areas frequented by minors.” Id.

at 165.    Paul contended that this condition was too broad because

it encompassed inevitable encounters with children in places like

grocery stores.    He further argued that it was vague because he

could not determine what it meant for a place to be “frequented by

minors.”    He similarly complained of the requirement that he avoid

“direct and indirect contact with minors.”          Id.

     We    concluded   that   the   district    court   did   not   abuse   its

discretion.    We reasoned that the condition in question should be

construed to exclude “chance or incidental encounters.”                Id. at

166. In reaching this conclusion, we implicitly drew a distinction

between unavoidable situations that arise as a regular part of

daily life and avoidable situations that arise as a result of


                                      4
conduct undertaken with a purpose of achieving a result which the

supervised release conditions plainly intend to preclude.             We also

stated, with respect to Paul’s contention that the condition in

question was too vague, that conditions of supervised release are

to be interpreted in light of common sense.                 Id. at 166-167

(“‘[C]onditions of probation do not have to be cast in letters six

feet high, or [] describe every possible permutation, or [] spell

out every last, self-evident detail.’”) (quoting United States v.

Gallo, 20 F.3d 7, 12 (1st Cir. 1993)).         Using common sense as his

guide, Paul should have been able to distinguish between the sorts

of places that are “frequented by minors” that he cannot reasonably

avoid, such as grocery stores, and the sorts of places that he can,

such as playgrounds and video arcades.

     Applying Paul to the instant case, we similarly find no abuse

of discretion in the district court’s decision to prohibit Garcia-

Mejia   from   possessing   “dangerous    weapons”   as   a   condition    of

supervised release.    The lesson of Paul is that Garcia-Mejia will

violate his supervised release only by possessing a “dangerous

weapon” in a context in which, by the dictates of common sense,

that “dangerous weapon” has no legitimate, everyday use.                  The

district   court’s   prohibition   on    the   possession     of   “dangerous

weapons,” for instance, would not prevent Garcia-Mejia from using

the restaurant’s steak-knife to cut the meat he was eating there,

but it would prevent him from carrying a steak-knife in his pocket


                                   5
for protection.    In using common sense this way, we strive to

balance Garcia-Mejia’s interest in leading an unencumbered life

with the public’s interest in being protected from people with a

history of violent crime.   See also United States v. Santillana,

03-40975, 2004 WL 1950438 (5th Cir. Sept. 3, 2004) at **2-**3.

     Turning to his Apprendi challenge, as Garcia-Mejia concedes,

his argument that the “felony” and “aggravated felony” provisions

of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional in light of

Apprendi is foreclosed by Almendarez-Torres, 523 U.S. 224 (1998).4

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).   This court must follow Almendarez-Torres “unless and

until the Supreme Court itself determines to overrule it.” Dabeit,

231 F.3d at 984 (internal quotation marks and citation omitted).

Thus, Garcia-Mejia’s argument has no merit.   It certainly does not

present plain error.

     The district court’s judgment is

                             AFFIRMED.




     4
       Garcia-Mejia makes this Apprendi challenge only to preserve
his claim for future review by the United States Supreme Court.

                                 6
