United States v. Hernandez-Gonzalez , 169 F. App'x 189 ( 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. 05-40169
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS MANUEL HERNANDEZ-GONZALEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1418-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Luis Manuel Hernandez-Gonzalez (Hernandez) pleaded guilty
without the benefit of a plea agreement to reentry into the
United States following deportation. See 8 U.S.C. § 1326(a),
(b).
Hernandez argues for the first time on appeal 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. Hernandez’s
*
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this opinion should not be published and is not precedent except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. 05-40169
-2-
claim is dismissed for lack of jurisdiction because it is not
ripe for review. See United States v. Riascos-Cuenu, 428 F.3d
1100, 1102 (5th Cir. 2005), petition for cert. filed (Jan. 9,
2006) (No. 05-8662).
Hernandez also challenges the constitutionality of
§ 1326(b). His constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Hernandez 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). Hernandez 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.
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.