United States v. Molina-Martinez , 169 F. App'x 283 ( 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. 05-40861
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE DELORES MOLINA-MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-95-1
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Delores Molina-Martinez appeals his guilty-plea
conviction and sentence for illegal re-entry after a previous
deportation. We need not decide the applicability of the waiver
provisions in this case because the issues that Molina-Martinez’s
raises are foreclosed.
Molina-Martinez argues that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466*
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this opinion should not be published and is not precedent except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. 05-40861
-2-
(2000). Although he contends that Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court
would overrule Almendarez-Torres in light of Apprendi, 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).
Molina-Martinez 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.
Molina-Martinez also argues that the prospective collection
of his DNA, which is a condition of his supervised release, would
violate his Fourth Amendment right to be free from unreasonable
searches and seizures. He properly concedes this claim 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). He raises the claim here to preserve it for
further review.
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.