United States v. Vallejo-Moreno , 169 F. App'x 192 ( 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. 05-40195
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PABLO VALLEJO-MORENO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1537-ALL
--------------------
Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Pablo Vallejo-Moreno (Vallejo) appeals his sentence under
8 U.S.C. § 1326 for attempted illegal reentry into the United
States after having been deported. Vallejo asserts that the
district court erred in concluding that his prior state felony
conviction for simple possession of cocaine and marijuana was an
“aggravated felony” for purposes of § 1326(b). Vallejo’s
argument is foreclosed by circuit precedent. See United States
*
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this opinion should not be published and is not precedent except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. 05-40195
-2-
v. Rivera, 265 F.3d 310, 312-13 (5th Cir. 2001); United States v.
Hinojosa-Lopez, 30 F.3d 691, 693-94 (5th Cir. 1997).
Vallejo also argues that the “felony” and “aggravated
felony” provisions of § 1326(b) are unconstitutional. This
challenge is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Vallejo contends that
Almendarez-Torres was incorrectly decided and that a majority of
the Supreme Court would overrule Almendarez-Torres in light of
Apprendi, 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). Vallejo 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.
Vallejo 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. He contends that the collection of his DNA violates the
Fourth Amendment. Vallejo concedes that the issue is not ripe
for review but raises the issue to preserve it for further
review. See United States v. Riascos-Cuenu, 428 F.3d 1100, 1102
(5th Cir. 2005), petition for cert. filed (Jan. 9, 2006)
(05-8662). As Vallejo concedes, this court lacks jurisdiction to
consider the issue. See id.JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.