United States v. Garcia-Ariola , 168 F. App'x 619 ( 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. 05-20402
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFREDO GARCIA-ARIOLA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-571-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Alfredo Garcia-Ariola appeals his sentence for illegal
reentry into the United States after deportation following a
conviction for an aggravated felony, in violation of 8 U.S.C.
§ 1326(a) and (b).
Garcia-Ariola challenges, for the first time on appeal, the
constitutionality of § 1326(b)’s treatment of prior felony and
aggravated felony convictions as sentencing factors rather than
elements of the offense that must be found by a jury in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). Garcia-Ariola’s
*
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this opinion should not be published and is not precedent except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. 05-20402
-2-
constitutional challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although Defendant
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). Garcia-Ariola 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. Garcia-Ariola’s sentence is affirmed.
Garcia-Ariola also argues, for the first time on appeal,
that the district court erred by ordering him to cooperate in the
collection of a DNA sample as a condition of his supervised
release and that this condition should therefore be vacated.
This claim is dismissed for lack of jurisdiction because it is
not ripe for review. 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).
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.