United States v. Vargas-Alarcon , 186 F. App'x 457 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 20, 2006
Charles R. Fulbruge III
Clerk
No. 05-40420
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS LEONEL VARGAS-ALARCON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-895-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Luis Leonel Vargas-Alarcon pleaded guilty without a plea
agreement to being an alien unlawfully found in the United States
after deportation and was sentenced to 57 months of imprisonment
and three years of supervised release. As a condition of
supervised release, Vargas-Alarcon was ordered to cooperate in
the collection of a DNA sample as directed by his probation
officer.
Vargas-Alarcon argues that the district court erred in
ordering him to cooperate in the collection of a DNA sample as a
*
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this opinion should not be published and is not precedent except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. 05-40420
-2-
condition of supervised release. This claim is dismissed for
lack of jurisdiction because it is not ripe for review. See
United States v. Riascos-Cuenu, 428 F.3d 1100, 1101-02 (5th Cir.
2005), petition for cert. filed (Jan. 9, 2006) (No. 05-8662).
Vargas-Alarcon’s constitutional challenge to 8 U.S.C.
§ 1326(b) is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Vargas-Alarcon contends that
Almendarez-Torres was incorrectly decided and that a majority of
the Supreme Court would overrule Almendarez-Torres in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000), we have repeatedly
rejected such arguments on the basis that Almendarez-Torres
remains binding. See United States v. Garza-Lopez, 410 F.3d 268,
276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Vargas-
Alarcon properly concedes that his argument is foreclosed in
light of Almendarez-Torres and circuit precedent, but he raises
it here to preserve it for further review.
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.