United States v. Alcala , 165 F. App'x 333 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 31, 2006
Charles R. Fulbruge III
Clerk
No. 05-40222
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHUY J. ALCALA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-1775-ALL
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Before REAVLEY, HIGGINBOTHAM and CLEMENT, Circuit Judges.
PER CURIAM:*
Chuy J. Alcala appeals his guilty-plea conviction of
possession with intent to distribute a quantity in excess of 50
grams of methamphetamine. Alcala argues that the district court
reversibly erred in failing to rule on his request for a downward
departure. He asserts that a court’s failure to comply with FED.
R. CRIM. P. 32(i)(3)(B) may be raised for the first time on appeal
and requires resentencing. He contends that it is undisputed
*
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this opinion should not be published and is not precedent except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. 05-40222
-2-
that the district court failed to rule on or make any findings
with respect to his downward-departure motion.
By imposing a sentence within the guideline range
immediately after hearing defense counsel’s argument in favor of
a downward departure, the district court implicitly denied the
motion. See United States v. Como, 53 F.3d 87, 90 (5th Cir.
1995). The record does not indicate that the district court
mistakenly believed it lacked authority to downwardly depart.
Therefore, we lack jurisdiction to review the district court’s
implicit denial of Alcala’s downward-departure motion. See
United States v. Landerman, 167 F.3d 895, 899 (5th Cir. 1999).
Alcala also argues that the district court abused its
discretion and reversibly erred when it imposed the collection of
his DNA as a condition of his supervised release. He argues that
the version of the 42 U.S.C. § 14135a(d) in effect at the time of
the offense did not include his crime of conviction. He asserts
that the application of the amendment of that statute to include
any felony conviction would violate the Ex Post Facto Clause. He
further asserts that, even if DNA collection is not considered a
punishment for purposes of the Ex Post Facto Clause, the
application of the amendment to him violates general rules of
retroactivity. Alcala’s claim regarding collection of DNA on
supervised release is not ripe for review. See United States v.
Riascos-Cuenu, 428 F.3d 1100, 1102 (5th Cir. 2005). We modify
the judgment to vacate this condition of supervised release.
No. 05-40222
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Finally, Alcala argues that, given the Supreme Court’s
decision in Apprendi v. New Jersey, 530 U.S. 466 (2000),
21 U.S.C. § 841(a) and (b) are unconstitutional. He concedes
that his argument is foreclosed under United States v. Slaughter,
238 F.3d 580, 582 (5th Cir. 2000), but states that he wishes to
preserve the issue for possible further review. We have
specifically rejected the argument that Apprendi rendered the
provisions of 21 U.S.C. § 841 unconstitutional. See Slaughter,
238 F.3d at 582; see also United States v. Valenzuela-Quevedo,
407 F.3d 728, 731 (5th Cir.), cert. denied, 126 S. Ct. 267(2005).
AFFIRMED AS MODIFIED.