United States v. Alfaro

176 F. App'x 432

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 11, 2006

Charles R. Fulbruge III Clerk No. 05-20206 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LOURDES ALFARO, also known as Lourdes J. Alfaro, also known as Wendy Borjas,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 4:04-CR-447-1 --------------------

Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

Lourdes Alfaro appeals her conviction for unlawful reentry

under 8 U.S.C. § 1326 and the district court’s imposition of a

supervised release condition requiring her to cooperate with DNA

collection. Alfaro first argues that § 1326(b)’s treatment of

prior felony and aggravated felony convictions as sentencing

factors rather than as elements of the offense that must be found

by a jury is unconstitutional in light of Apprendi v. New Jersey,

530 U.S. 466 (2000). This argument is foreclosed by Almendarez-

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-20206 -2-

Torres v. United States, 523 U.S. 224, 235 (1998). Although

Alfaro 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). Alfaro

properly concedes that her argument is foreclosed in light of

Almendarez-Torres and circuit precedent, but she raises it here

to preserve it for further review.

Alfaro next asserts that the district court erred by

ordering her to cooperate in the collection of a DNA sample while

on supervised release. This claim is not ripe for review on

direct appeal. See United States v. Riascos-Cuenu, 428 F.3d

1100, 1102 (5th Cir. 2005), petition for cert. filed (Jan. 9,

2006) (No. 05-8662). The claim is dismissed. See id. at 1102.

JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.