United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 1, 2004

Charles R. Fulbruge III Clerk No. 04-20193 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE PRISCILIANO BAEZ-LEON,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-03-CR-311-1 --------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Jose Prisciliano Baez-Leon (Baez) was convicted of illegal

reentry after deportation, and he was sentenced to 30 months’

imprisonment, three years’ supervised release, and a $100 special

assessment that was ordered remitted on motion of the Government.

Baez contends that the district court erred by characterizing his

state felony conviction for simple possession of marijuana as an

“aggravated felony” for purposes of U.S.S.G. § 2L1.2. However,

this issue is foreclosed by our precedent. See United States v.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-20193 -2-

Caicedo-Cuero,

(5th Cir. 2002), cert.

denied,

(2003); United States v. Hinojosa-Lopez,

(5th Cir. 1997).

Baez also argues that the “felony” and “aggravated felony”

provisions of

(a) and (b) are unconstitutional.

He acknowledges that his argument is foreclosed, but he seeks to

preserve the issue for possible Supreme Court review in light of

Apprendi v. New Jersey,

(2000). As Baez concedes,

this issue is foreclosed. See Almendarez-Torres v. United

States,

(1998); United States v. Dabeit,

(5th Cir. 2000).

Baez also contends that, based on this court’s recent

decision in United States v. Ferguson,

(5th Cir.

2004), the district court plainly erred in prohibiting him from

using tobacco products as a special condition of his supervised

release. Because Baez’s use of tobacco is not reasonably related

to his violation of illegal reentry after deportation and because

there is no indication that the condition was necessary for

deterrence, public safety, or medical care, we agree that the

district court plainly erred in prohibiting Baez’s tobacco use

during his supervised release. See Ferguson,

.

Accordingly, we VACATE the sentence in part and REMAND for the

district court to modify the special conditions of Baez’s

supervised release in a manner consistent with this opinion.

AFFIRMED IN PART. VACATED AND REMANDED IN PART.