United States v. Rodriguez-Moctezuma

176 F. App'x 450

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. 05-40868 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOEL RODRIGUEZ-MOCTEZUMA, aka Carlos Lopez-Moctezuma,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-851-1 --------------------

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

PER CURIAM:*

Joel Rodriguez-Moctezuma pleaded guilty to being found

unlawfully in the United States after deportation and was

sentenced to 72 months of imprisonment and three years of

supervised release. As a condition of supervised release,

Rodriguez-Moctezuma was ordered to cooperate in the collection

of a DNA sample as directed by his probation officer.

Rodriguez-Moctezuma argues that the district court erred in

ordering him to cooperate in the collection of a DNA sample as 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40868 -2-

condition of supervised release. 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, 1101-02 (5th Cir.

2005), petition for cert. filed (Jan. 9, 2006) (No. 05-8662).

Rodriguez-Moctezuma’s constitutional challenge to 8 U.S.C.

§ 1326(b) is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224, 235 (1998). Although Rodriguez-Moctezuma 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). Rodriguez-Moctezuma 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.