United States v. Molina-Martinez

169 F. App'x 283

Opinion

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. 05-40861 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE DELORES MOLINA-MARTINEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:05-CR-95-1 --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Jose Delores Molina-Martinez appeals his guilty-plea

conviction and sentence for illegal re-entry after a previous

deportation. We need not decide the applicability of the waiver

provisions in this case because the issues that Molina-Martinez’s

raises are foreclosed.

Molina-Martinez argues 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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40861 -2-

(2000). Although he 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).

Molina-Martinez 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.

Molina-Martinez also argues that the prospective collection

of his DNA, which is a condition of his supervised release, would

violate his Fourth Amendment right to be free from unreasonable

searches and seizures. He properly concedes this claim is not

ripe for review. See United States v. Riascos-Cuenu, 428 F.3d

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

2006) (No. 05-8662). He raises the claim here to preserve it for

further review.

JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.