United States v. Pelaes-Funtez

176 F. App'x 488

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 12, 2006
• Docket: 05-40447
• Status: Unpublished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 12, 2006

Charles R. Fulbruge III Clerk No. 05-40447 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NAVOR PELAES-FUNTEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-1882-ALL --------------------

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

PER CURIAM:*

Navor Pelaes-Funtez (Pelaes) appeals following his guilty-

plea to being found illegally in the United States after

deportation. Pelaes was sentenced to 50 months in prison and

three years of supervised release.

Pelaes challenges the constitutionality of 8 U.S.C.

§ 1326(b)’s treatment of prior felony and aggravated felony

convictions as sentencing factors rather than elements of the

offense that must be proved beyond a reasonable doubt in light of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40447 -2-

Apprendi v. New Jersey, 530 U.S. 466 (2000). This argument is

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

235 (1998). Although Pelaes contends that a majority of the

Supreme Court would now consider Almendarez-Torres to be

incorrectly decided in light of Apprendi, “[t]his court has

repeatedly rejected arguments like the one made by [Pelaes] and

has held that Almendarez-Torres remains binding despite

Apprendi.” United States v. Garza-Lopez, 410 F.3d 268, 276 (5th

Cir.), cert. denied, 126 S. Ct. 298 (2005). Pelaes concedes that

the issue is foreclosed. He has raised the issue to preserve it

for further review.

Pelaes also contends that the district court abused its

discretion by imposing as a condition of supervised release that

he cooperate in the collection of a DNA sample. Because this

issue is not ripe for review, this court does not have

jurisdiction and this portion of the appeal must be dismissed.

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). Pelaes correctly concedes that the ripeness issue is

foreclosed by circuit precedent but raises his argument to

preserve it for further review.

JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.