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United States v. Torres-Martinez , 169 F. App'x 203 ( 2006 )


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  •                                                        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. 05-40313
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS TORRES-MARTINEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-811-ALL
--------------------
Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Luis Torres-Martinez (Torres) pleaded guilty to count 1
of an indictment charging him with being found illegally in the
United States after deportation.   Torres was sentenced to a 30-
month term of imprisonment and to a three-year period of
supervised release.   Torres has appealed his sentence.
Torres’s guideline offense level was increased by eight
levels because he was convicted in state court prior to
deportation of felony possession of a controlled substance.
*
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this opinion should not be published and is not precedent except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. 05-40313
-2-
Torres contends that his prior conviction involved simple
possession only and should not have been regarded as an
aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(1)(C)
(2004).   He contends that the enhancement was improper because
his state felony conviction for simple possession of cocaine
would have been a misdemeanor under federal law, not an
“aggravated felony.”   These arguments are foreclosed.    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).
Torres contends that the district court abused its
discretion in imposing as a condition of supervised release the
requirement that Torres cooperate in the collection of a DNA
sample.   Because this issue is not ripe for review, this court
does not have jurisdiction and this portion of the appeal must be
dismissed.    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).
Torres challenges the constitutionality of
    8 U.S.C. § 1326
    (b)’s treatment of prior felony and aggravated felony
convictions as sentencing factors rather than elements of the
offense that must be proved beyond a reasonable doubt in light of
Apprendi v. New Jersey,
    530 U.S. 466
     (2000).   This argument is
foreclosed by Almendarez-Torres v. United States,
    523 U.S. 224
    ,
235 (1998).   Although Torres contends that Almendarez-Torres has
been “impliedly overruled” by subsequent Supreme Court decisions,
No. 05-40313
-3-
including Apprendi, “[t]his court has repeatedly rejected
arguments like the one made by [Torres] and has held that
Almendarez-Torres remains binding despite Apprendi.”   United
States v. Garza-Lopez,
    410 F.3d 268
    , 276 (5th Cir.), cert.
denied,
    126 S. Ct. 298
     (2005).   Torres concedes that the issue is
foreclosed.   He has raised the issue to preserve it for further
review.
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.