United States v. Aldana-Sanabria , 169 F. App'x 197 ( 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. 05-40668
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ALFREDO ALDANA-SANABRIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-846
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Alfredo Aldana-Sanabria appeals his sentence under
8 U.S.C. § 1326 for illegal re-entry into the United States after
having been deported. First, Aldana-Sanabria asserts that the
district court erred in concluding that his prior state felony
conviction for simple possession of a controlled substance was an
“aggravated felony” for purposes of § 1326(b). Our precedent
holds that a state felony conviction for simple drug possession
is properly considered an aggravated felony for purposes of
*
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this opinion should not be published and is not precedent except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. 05-40668
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§ 1326(b). See United States v. Rivera, 265 F.3d 310, 312-13
(5th Cir. 2001); United States v. Hinojosa-Lopez, 130 F.3d 691,
693-94 (5th Cir. 1997). Therefore, this issue is without merit,
and we affirm the judgment of the district court with respect to
it.
Next, Aldana-Sanabria argues that the district court erred
in ordering, as a condition of supervised release, that he
cooperate with the probation officer in the collection of DNA.
His claim is not ripe for judicial review in light of our holding
in United States v. Riascos-Cuenu, 428 F.3d 1100, 1102 (5th Cir.
2005), petition for cert. filed (Jan. 9, 2006) (No. 05-8662).
Accordingly, we dismiss this portion of the appeal for lack of
jurisdiction.
Last, Aldana-Sanabria argues that the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326(b) are
unconstitutional. His challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Aldana-Sanabria 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). Aldana-Sanabria properly
concedes that his argument is foreclosed in light of
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Almendarez-Torres and circuit precedent, but he raises it here to
preserve it for further review. Thus, we affirm the judgment of
the district court on this point.
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.