United States v. Felix-Terrazas , 168 F. App'x 625 ( 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. 05-40137
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROSARIO FELIX-TERRAZAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-776-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Rosario Felix-Terrazas (Felix) appeals his conviction and
sentence for illegal reentry. He raises a constitutional
challenge to 8 U.S.C. § 1326(b)(1) and (2) and also argues that
the district court plainly erred in requiring him to submit to
DNA testing as a condition of his supervised release. Felix’s
appeal waiver is unenforceable because the magistrate judge
advised him at his rearraignment hearing that he could appeal an
illegal sentence. See, e.g., United States v. Robinson, 187 F.3d
*
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this opinion should not be published and is not precedent except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. 05-40137
-2-
516, 517-18 (5th Cir. 1999). We need not decide the
applicability of the sentencing waiver in the plea agreement
because the appellate issues are foreclosed.
Felix’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Felix 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). Felix 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.
Felix’s supervised release claim is not ripe for review and
is therefore dismissed for lack of jurisdiction. See United
States v. Riascos-Cuenu, 428 F.3d 1100, 1101 (5th Cir. 2005),
petition for cert. filed (Jan. 9, 2006) (No. 05-8662).
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.