                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                     F I L E D
                                                      September 19, 2003
                          UNITED STATES COURT OF APPEALS
                                                                 Charles R. Fulbruge III
                                       FIFTH CIRCUIT                     Clerk
                                      _________________

                                          No. 02-21343

                                      (Summary Calendar)
                                      _________________


UNITED STATES OF AMERICA,


                              Plaintiff-Appellee,

versus


MARCO ANTONIO PALMA-GUILLEN,


                              Defendant-Appellant.



                          Appeal from the United States District Court
                              For the Southern District of Texas
                                     H-02-CR-387-ALL



Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

         Marco Antonio Palma-Guillen (“Palma”) pled guilty to being found in the United States




         *
               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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
following deportation for an aggravated felony conviction. See 8 U.S.C. §§ 1326(a), (b)(2). The

district court sentenced Palma to 64 months in prison, three years of supervised release, a $200 fine,

and a $100 special assessment.

        In this appeal, Palma first challenges t he assessment of the $200 fine. Palma failed to

challenge the assessment of the fine in the district court. Therefore, this Court reviews the district

court’s decision only for plain erro r. Under that standard, this Court will not reverse the district

court, unless (1) there is an error; (2) the error is plain; (3) the error affects a defendant’s substantial

rights; and (4) the error seriously affected the fairness, integrity, or public reputation of the judicial

proceedings. United States v. Edwards, 303 F.3d 606, 641 (5th Cir. 2002).

        Palma argues that the district court plainly erred in assessing the $200 fine. Palma claims that

the district court should not have assessed the fine against him, because he does not have the means

to pay the fine. Sentencing Guideline § 5E1.2 states that a sentencing court “shall impose a fine in

all cases, except where the defendant establishes that he is unable to pay and is not likely to become

able to pay any fine.” U.S. SENTENCING GUIDELINES MANUAL § 5E1.2(a). The burden is on the

defendant to demonstrate to the district court that he is unable (and will not become able) to pay a

fine. See United States v. Fair, 979 F.2d 1037, 1041 (5th Cir. 1992).

        Palma claims that he cannot (and will not be able to) pay the $200 fine. Palma asserts that

current prison regulations make it difficult for inmates subject to deportation to earn money in federal

prison. See 28 C.F.R. § 345.35 (a) (“An inmate or detainee may be considered for assignment with

FPI [Federal Prison Indust ries] unless the inmate . . . is currently under an order of deportation,

exclusion, or removal.”). As a result, Palma contends, he has no way of earning money during his

period of incarceration. Therefore, he claims, the district court should not have assessed a monetary


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penalty against him.

        We conclude that the district court did not plainly err in assessing the fine. 28 C.F.R.

§ 345.35(a) purports to prohibit only those inmates that are currently under an order of deportation

from working at the prison. See id. Therefore, in order to satisfy his burden of proving that he would

not be able to pay the fine, Palma was required present evidence that he is currently under an order

of deportation. Because he has failed to present such evidence, we conclude that the district court

did not plainly err in determining that Palma would be able to earn money in prison to pay the fine.

As a result, the district court did not err in assessing the $200 fine.

        As Palma concedes, his arguments regarding the constitutionality of 8 U.S.C. § 1326(b) are

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). We must follow that

decision unless and until the Supreme Court overrules it. See United States v. Dabeit, 231 F.3d 979,

984 (5th Cir. 2000). Therefore, we reject Palma’s argument that 8 U.S.C. § 1326 is unconstitutional.

        For the foregoing reasons, the judgment of the district court is AFFIRMED.




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