United States v. Tiburcio-Avila , 204 F. App'x 353 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 24, 2006
Charles R. Fulbruge III
Clerk
No. 05-40142
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID TIBURCIO-AVILA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-736-1
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
David Tiburcio-Avila appeals the sentence imposed following
his guilty-plea conviction for being found illegally in the
United States after deportation. Tiburcio-Avila was sentenced
to 57 months in prison and three years of supervised release.
Tiburcio-Avila contends that the district court abused its
discretion by imposing as a condition of supervised release that
he cooperate in the collection of a DNA sample. Because this
issue is not ripe for review, this court does not have
*
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this opinion should not be published and is not precedent except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. 05-40142
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jurisdiction, and the appeal must be dismissed in part. 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).
Tiburcio-Avila correctly concedes that the ripeness issue is
foreclosed by circuit precedent but raises his argument to
preserve it for further review.
Tiburcio-Avila argues that the district court plainly
erred in imposing his sentence under the then mandatory United
States Sentencing Guidelines, which were subsequently held
unconstitutional in United States v. Booker, 543 U.S. 220 (2005).
Because he did not raise this issue in the district court, review
is limited to plain error. See United States v. Harris, 104 F.3d
1465, 1471-72 (5th Cir. 1997). Under the plain-error standard of
review, “reversal is not required unless there is (1) an error;
(2) that is clear or plain; (3) that affects the defendant’s
substantial rights; and (4) that seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United
States v. Vasquez, 216 F.3d 456, 459 (5th Cir. 2000). The
imposition of Tiburcio-Avila’s sentence under the mandatory
Guidelines was error that was plain. See United States v.
Martinez-Lugo, 411 F.3d 597, 600 (5th Cir.), cert. denied,
126 S. Ct. 464 (2005). However, Tiburcio-Avila has not shown
that the error affected his substantial rights as he has not
shown that the district court would likely have imposed a lesser
sentence under an advisory guidelines sentencing scheme. See id.
No. 05-40142
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at 600-01. Therefore, he has not shown that the district court’s
imposition of his sentence under the mandatory Guidelines was
reversible plain error. See id.
Tiburcio-Avila argues that his conviction should be vacated
because the “felony” and “aggravated felony” provisions of
8 U.S.C. § 1326(b) are unconstitutional. His constitutional
challenge to § 1326(b) is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although Tiburcio-Avila
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). Tiburcio-Avila 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.