United States v. Rios-Rivera

169 F. App'x 224

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. 05-40430 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS RIOS-RIVERA, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-1921-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Jesus Rios-Rivera pleaded guilty to illegal reentry after

deportation and was sentenced to 63 months of imprisonment and

three years of supervised release. Rios-Rivera argues 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 United States v. Riascos-Cuenu, 428 F.3d 1100,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40430 -2-

1101-02 (5th Cir. 2005), petition for cert. filed (Jan. 9, 2006)

(No. 05-8662).

Rios-Rivera’s constitutional challenge to the “felony” and

“aggravated felony” provisions of 8 U.S.C. § 1326(b) is

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

235 (1998). Although Rios-Rivera 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). Rios-Rivera 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.