United States v. Pena-Garza , 158 F. App'x 576 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 14, 2005
Charles R. Fulbruge III
Clerk
No. 05-40738
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISAURO PENA-GARZA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-449-ALL
--------------------
Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*
Isauro Pena-Garza appeals his guilty-plea conviction and
sentence for being found in the United States, without
permission, following deportation. See 8 U.S.C. § 1326(a), (b).
Pena-Garza argues that the sentencing provisions in 8 U.S.C.
§ 1326(b) are unconstitutional. Pena-Garza’s constitutional
challenge is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Pena-Garza contends that
Almendarez-Torres was incorrectly decided and that a majority of
*
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this opinion should not be published and is not precedent except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. 05-40738
-2-
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). Pena-Garza
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.
Pena-Garza 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. Pena-Garza’s complaint is not ripe for
review. See United States v. Riascos-Cuenu, ___ F.3d ___, No.
05-20037, 2005 WL 2660032 at *1-2 (5th Cir. Oct. 18, 2005);
United States v. Carmichael, 343 F.3d 756, 761-62 (5th Cir.
2003). The appeal of this claim is dismissed for lack of
jurisdiction.
Pena-Garza has not established error with respect to his
conviction and sentence. Accordingly, the judgment of the
district court is affirmed.
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART FOR LACK OF
JURISDICTION.