United States v. Garcia-Hernandez , 169 F. App'x 227 ( 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. 05-40444
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE RENE GARCIA-HERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-2188-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Rene Garcia-Hernandez (Garcia) pleaded guilty to
illegal reentry after deportation and was sentenced to 70 months
of imprisonment and a three-year term of supervised release.
Garcia argues for the first time on appeal that the district
court erred in ordering him to cooperate in the collection of a
DNA sample as a condition of 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
*
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this opinion should not be published and is not precedent except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. 05-40444
-2-
United States v. Riascos-Cuenu, 428 F.3d 1100, 1102 (5th Cir.
2005), petition for cert. filed (Jan. 9, 2006) (No. 05-8662).
Also for the first time on appeal, Garcia challenges the
constitutionality of 8 U.S.C. § 1326(b). His constitutional
challenge is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Garcia 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). Garcia
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.
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.