                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                 October 30, 2002

                                                          Charles R. Fulbruge III
                                                                  Clerk
                             No. 02-20054
                         Conference Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

WILLIAM ERNESTO PEREZ-BOLLANO, also
known as William Bollano-Perez, also
known as William Perez, also known as
William Ernesto Perez, also known as
William Ernesto Bolan Perez, also known
as William Perez-Bollanos,

                                          Defendant-Appellant.

                       - - - - - - - - - -
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. H-01-CR-113-1
                       - - - - - - - - - -


Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     Willam Ernesto Perez-Bollano (Perez) appeals his conviction

after a bench trial of illegal re-entry in violation of 8 U.S.C.

§ 1326(b)(2).   He raises three issues on appeal: (1) that the

district court erred by delegating authority to the United States

Probation Office to determine his ability to pay the costs of the

     *
        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that this opinion should not be published and is not precedent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. 02-20054
                                -2-

court-ordered drug and alcohol treatment program; (2) that 8

U.S.C. § 1326(b)(2) is unconstitutional because it does not

require a prior aggravated felony offense to be proven to the

factfinder beyond a reasonable doubt; and (3) that the evidence

of his prior deportation should have been suppressed because the

removal procedures violated due process.   Perez concedes that the

latter two arguments are foreclosed by this court’s precedent but

raises these issues in order to preserve possible Supreme Court

review.

     Apprendi v. New Jersey, 530 U.S. 466 (2000), did not

overrule Almendarez-Torres v. United States, 523 U.S. 224 (1998).

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).   Accordingly, Perez’s argument that 8 U.S.C. § 1326(b)(2)

is unconstitutional lacks merit.

     In United States v. Benitez-Villafuerte, 186 F.3d 651, 656-

59 (5th Cir. 1999), this court held that the administrative

removal procedures in 8 U.S.C. § 1228 do not violate due process

and that in order to collaterally attack a prior deportation

proceeding in a prosecution under 8 U.S.C. § 1326 a defendant is

required to establish that there is a reasonable likelihood that

he would not have been deported but for the alleged errors in the

deportation proceeding.   Perez has conceded that he cannot meet

this standard.   Therefore, this issue is foreclosed.
                           No. 02-20054
                                -3-

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

recently rejected an appellant’s assertion that allowing a

probation officer to determine the appellant’s ability to pay the

costs of court-ordered treatment programs was an impermissible

delegation of authority.   Thus, Perez’s first argument also is

foreclosed by circuit precedent.   Id. at 366.

     AFFIRMED.
