United States v. Guevara-Betancourt , 169 F. App'x 205 ( 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. 05-40321
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUSTAVO GUEVARA-BETANCOURT,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-830-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Gustavo Guevara-Betancourt appeals his guilty-plea
conviction and sentence for being found in the United States,
without permission, following removal. See 8 U.S.C. § 1326(a),
(b). Guevara-Betancourt argues that the sentencing provisions in
§ 1326(b) are unconstitutional. Guevara-Betancourt’s
constitutional challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although Guevara-
Betancourt contends that Almendarez-Torres was incorrectly
*
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this opinion should not be published and is not precedent except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. 05-40321
-2-
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). Guevara-Betancourt 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.
Guevara-Betancourt also argues that the district court erred
by requiring, as a condition of supervised release, that he
cooperate in the collection of his DNA as directed by his
probation officer. Guevara-Betancourt’s complaint is not ripe
for review, and we dismiss this part of the appeal. See United
States v. Riascos-Cuenu, 428 F.3d 1100, 1102 (5th Cir. 2005),
petition for cert. filed (Jan. 9, 2006) (No. 05-8662).
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.