United States v. Lopez-Flores

70 F. App'x 236

5th Cir.

2003

Check Treatment

Docket

Jessie T. CARTER, Plaintiff-Appellant, v. EAST BATON ROUGE PARISH PRISON; Unknown Moore, Deputy; Unknown Elginfrisk, Deputy, Defendants-Appellees.

No. 03-30373.

United States Court of Appeals, Fifth Circuit.

July 28, 2003.

236

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

Summary Calendar

PER CURIAM:^*

Jessie T. Carter, Louisiana state prisoner # 333544, appeals the district court‘s dismissal without prejudice of his 42 U.S.C. § 1983 complaint for failure to exhaust his prison administrative remedies. Carter argues that he attempted to exhaust his prison remedies in the East Baton Rouge Parish Prison system, but received no response.

The exhaustion requirement applies to all inmate suits regardless of the forms of relief sought or the remedies offered by the administrative procedures. See Booth v. Churner, 532 U.S. 731, 739, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Carter was therefore required to exhaust his administrative remedies. Clifford v. Gibbs, 298 F.3d 328, 332 (5th Cir.2002).

Although defenses may be available to the exhaustion requirement, Carter has failed to assert any valid basis for the assertion of a defense. See Days v. Johnson, 322 F.3d 863, 866 (5th Cir.2003). The judgment of the district court is AFFIRMED. Carter‘s motion for the appointment of counsel is DENIED. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir.1982).

UNITED STATES of America, Plaintiff-Appellee, v. Jaime LOPEZ-FLORES, also known as Jamie Flores, Defendant-Appellant.

No. 02-21076.

United States Court of Appeals, Fifth Circuit.

July 29, 2003.

236

Before JONES, STEWART, and DENNIS, Circuit Judges.

Summary Calendar

PER CURIAM:^*

Jaime Lopez-Flores (“Lopez“) was convicted of being unlawfully present in the United States. He appeals the district court‘s imposition of a $2,000 fine, arguing that the district court erred reversibly by imposing a fine based on his ability to earn money while in prison. Lopez argues that 28 C.F.R. § 345.35(a) prohibits deportable aliens from placement in Federal Prison Industries (“FPI“) jobs.

Because Lopez 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 is ineligible for an FPI job assignment under 28 C.F.R. § 345.35(a). The district court‘s determination that Lopez has the future ability to pay the fine through prison earnings is not clearly erroneous. Moreover, the fact of deportability alone does not prevent the imposition of a fine. United States v. Thompson, 227 F.3d 43 (2d Cir. 2000).

Lopez also argues, for the first time on appeal, that 8 U.S.C. § 1326(b) is unconstitutional because it treats a prior conviction for a felony or aggravated felony as a sentencing factor and not as an element of the offense. Lopez‘s argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 239-47, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Apprendi v. New Jersey, 530 U.S. 466, 489-90, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), did not overrule that decision. See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000). Thus, the district court did not err in sentencing Lopez under 8 U.S.C. § 1326(b).

The judgment of the district court is AFFIRMED.

Notes

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. 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.

PER CURIAM:*

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Notes

PER CURIAM:^*

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