United States v. Resendiz-Rios , 180 F. App'x 539 ( 2006 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                   May 18, 2006
    Charles R. Fulbruge III
    Clerk
    No. 05-40157
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    GABRIEL RESENDIZ-RIOS,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 1:04-CR-782-ALL
    --------------------
    Before SMITH, GARZA, and PRADO, Circuit Judges.
    PER CURIAM:*
    Gabriel Resendiz-Rios (Resendiz) appeals the sentence
    imposed following his guilty-plea conviction of unlawful entering
    the United States after having been deported previously following
    an aggravated felony conviction.   Resendiz challenges the
    constitutionality of the felony and aggravated felony provisions
    of 8 U.S.C. § 1326(b) and the district court’s order that he
    *
    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    that this opinion should not be published and is not precedent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. 05-40157
    -2-
    cooperate with the probation officer in the collection of DNA as
    a condition of supervised release.
    Although, in a written plea agreement, Resendiz waived the
    right to appeal his sentence except for upward departures and a
    sentence exceeding the statutory maximum, the Government does not
    seek enforcement of the waiver.    Accordingly, the waiver does not
    bar this appeal.   See United States v. Story, 
    439 F.3d 226
    , 230-
    31 (5th Cir. 2006).
    Resendiz’s constitutional challenge to § 1326(b) is
    foreclosed by Almendarez-Torres v. United States, 
    523 U.S. 224
    ,
    235 (1998).   Although Resendiz 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).    Resendiz 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.
    Resendiz also argues that the district court erred by
    ordering him to cooperate in the collection of a DNA sample as a
    condition of supervised release.   This claim is not ripe for
    review on direct appeal.   See United States v. Riascos-Cuenu, 
    428 F.3d 1100
    , 1101-02 (5th Cir. 2005), petition for cert. filed
    No. 05-40157
    -3-
    (Jan. 9, 2006) (No. 05-8662).   The claim is dismissed.   See 
    id. at 1102.
    JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.
    

Document Info

Docket Number: 05-40157

Citation Numbers: 180 F. App'x 539

Judges: Garza, Per Curiam, Prado, Smith

Filed Date: 5/18/2006

Precedential Status: Non-Precedential

Modified Date: 8/2/2023