                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           July 23, 2003

                       FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
                                                                  Clerk


                           No. 02-21292
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

VALENTINE CHAVEZ-VASQUEZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. H-02-CR-311-1
                       --------------------

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

          Valentine Chavez-Vasquez (“Chavez”) appeals the

sentence imposed following his guilty plea for illegal re-entry

into the United States following deportation.   Chavez appeals the

district court’s imposition of a $500 fine, arguing that the

district court erred reversibly by imposing a fine based on his

ability to earn money while in prison.   Chavez argues that 28

C.F.R. § 345.35(a) prohibits deportable aliens from placement in

     *
        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that this opinion should not be published and is not precedent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. 02-21292
                                -2-

Federal Prison Industries (“FPI”) jobs.   Chavez also contends

that U.S.C. § 1326(b) is unconstitutional based on Apprendi

v. New Jersey, 530 U.S. 466 (2000).

          Chavez did not raise below the issue of inability to

work in prison, so we will review it for plain error only.

Because Chavez 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 in ineligible for an FPI job assignment

under 28 C.F.R. § 345.35(a).   The district court’s determination

that Chavez has the future ability to pay the fine through prison

earnings is not clearly, much less plainly, erroneous.

          Chavez’ contention that the enhancement provisions in

8 U.S.C. § 1326(b) is unconstitutional lacks merit because

Apprendi did not overrule Almendarez-Torres v. United States,

523 U.S. 24 (1998).   See Apprendi, 530 U.S. at 489-90; United

States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).

     For the foregoing reasons, Chavez’ sentence is AFFIRMED.
