United States v. Chirinos-Torres , 169 F. App'x 282 ( 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. 05-40867
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO LUIS CHIRINOS-TORRES,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-786-1
--------------------
Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Mario Luis Chirinos-Torres (Chirinos) was convicted by a
jury of being found unlawfully in the United States after
deportation and was sentenced to 63 months of imprisonment and
three years of supervised release. As a condition of supervised
release, Chirinos was ordered to cooperate in the collection of a
DNA sample as directed by his probation officer.
Chirinos argues that the district court erred in ordering
him to cooperate in the collection of a DNA sample as a condition
*
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this opinion should not be published and is not precedent except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. 05-40867
-2-
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).
Chirinos’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 Chirinos 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). Chirinos 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.