United States v. Rios-Rivera , 169 F. App'x 224 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006
Charles R. Fulbruge III
Clerk
No. 05-40430
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS RIOS-RIVERA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1921-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Jesus Rios-Rivera pleaded guilty to illegal reentry after
deportation and was sentenced to 63 months of imprisonment and
three years of supervised release. Rios-Rivera argues that the
district court erred in ordering him to cooperate in the
collection of a DNA sample as a condition of supervised release
and that this condition should therefore be vacated. 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,
*
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this opinion should not be published and is not precedent except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. 05-40430
-2-
1101-02 (5th Cir. 2005), petition for cert. filed (Jan. 9, 2006)
(No. 05-8662).
Rios-Rivera’s constitutional challenge to the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326(b) is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Rios-Rivera 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). Rios-Rivera 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.