United States v. Diaz-Perez

176 F. App'x 438

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 11, 2006
• Docket: 05-20507
• Status: Unpublished

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. 05-20507 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VALENTINE DIAZ-PEREZ, also known as Sergio Cabraba,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 4:04-CR-530-ALL --------------------

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

PER CURIAM:*

Valentine Diaz-Perez appeals his guilty plea conviction and

sentence for being found unlawfully in the United States after

having been deported. The district court sentenced Diaz-Perez to

77 months of imprisonment and three years of supervised release.

Diaz-Perez first challenges the 16-level sentencing

enhancement he received under U.S.S.G. § 2L1.2(b)(1)(A)(ii),

arguing that the district court erred by finding that his prior

Texas conviction for burglary of a habitation constitutes a

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-20507 -2-

“crime of violence.” The district court correctly found that

Diaz-Perez’s prior conviction for burglary of a habitation was a

conviction for a crime of violence under § 2L1.2(b)(1)(A)(ii).

See United States v. Hornsby, 88 F.3d 336, 339 (5th Cir. 1996);

United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.

2005), cert. denied, 126 S. Ct. 1398 (2006).

Diaz-Perez also argues that the district court erred in

ordering him to cooperate in the collection of a DNA sample as a

condition of supervised release. As Diaz-Perez concedes, 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). Accordingly, this

claim is dismissed.

In his final argument, Diaz-Perez contends 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 (2000). Diaz-Perez’s constitutional challenge is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998). Although Diaz-Perez 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).

Diaz-Perez properly concedes that his argument is foreclosed in No. 05-20507 -3-

light of Almendarez-Torres and circuit precedent, but he raises

it here to preserve it for further review.

JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.