United States v. Zambrano-Duenez , 169 F. App'x 193 ( 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. 05-40292
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AMADOR ZAMBRANO-DUENEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1503-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Amador Zambrano-Duenez (Zambrano) appeals his sentence under
8 U.S.C. § 1326 for illegal reentry into the United States after
having been deported. Zambrano asserts 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. He contends that the
collection of his DNA violates the Ex Post Facto Clause.
*
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this opinion should not be published and is not precedent except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. 05-40292
-2-
In United States v. Riascos-Cuenu, 428 F.3d 1100, 1102 (5th
Cir. 2005) petition for cert. filed (Jan. 9, 2006) (No. 05-8662),
which was decided after Zambrano filed his brief, this court
declined to address such an argument on the ground that the claim
was not ripe for review. In accordance with Riascos-Cuenu, this
court lacks jurisdiction over this argument.
Zambrano also argues that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional.
This challenge is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998). Although Zambrano 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).
Zambrano 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.