United States v. Aguilar-Cristales , 169 F. App'x 281 ( 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. 05-40854
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS ALBERTO AGUILAR-CRISTALES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-25-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Carlos Alberto Aguilar-Cristales (Aguilar) pleaded guilty to
being found illegally in the United States after deportation.
Aguilar was sentenced to a 57-month term of imprisonment and to a
two-year period of supervised release. Aguilar has appealed his
conviction and sentence.
Aguilar contends that the imposition of a requirement that
Aguilar cooperate in the collection of a DNA sample violates his
rights under the Fourth Amendment. Because this issue is not
*
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this opinion should not be published and is not precedent except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. 05-40854
-2-
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).
Aguilar 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 Aguilar contends that Almendarez-Torres has
been “impliedly overruled” by subsequent Supreme Court decisions,
including Apprendi, “[t]his court has repeatedly rejected
arguments like the one made by [Aguilar] 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). Aguilar concedes that the issue
is foreclosed. He has raised the issue to preserve it for
further review.
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.