IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-21212 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MIGUEL PENA-GONZALEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-504-1 -------------------- October 29, 2002 Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Miguel Pena-Gonzalez (“Pena”) appeals the sentence he

received following his guilty-plea conviction for illegal

reentry, in violation of

. Pena argues that the

district court impermissibly delegated the authority to determine

his ability to pay for the cost of alcohol/drug treatment, which

was ordered as a special condition of his supervised release, to

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-21212 -2-

the Probation Department. This argument is foreclosed by United

States v. Warden,

(5th Cir. 2002).

Pena additionally argues that his sentence was improperly

enhanced by his prior aggravated felony conviction under

(b). He contends that the enhancement was improper and

that

is unconstitutional because his prior

conviction was an element of the offense which must have been

included in his indictment. As Pena concedes, this argument is

similarly foreclosed. See Almendarez-Torres v. United States,

(1998); see also United States v. Dabeit,

(5th Cir. 2000), cert. denied,

(2001).

The district court’s judgment is AFFIRMED.