United States v. Torres-Martinez

169 F. App'x 203

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 23, 2006
• Docket: 05-40313
• Status: Unpublished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 February 23, 2006

Charles R. Fulbruge III Clerk No. 05-40313 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE LUIS TORRES-MARTINEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-811-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Jose Luis Torres-Martinez (Torres) pleaded guilty to count 1

of an indictment charging him with being found illegally in the

United States after deportation. Torres was sentenced to a 30-

month term of imprisonment and to a three-year period of

supervised release. Torres has appealed his sentence.

Torres’s guideline offense level was increased by eight

levels because he was convicted in state court prior to

deportation of felony possession of a controlled substance.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40313 -2-

Torres contends that his prior conviction involved simple

possession only and should not have been regarded as an

aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(1)(C)

(2004). He contends that the enhancement was improper because

his state felony conviction for simple possession of cocaine

would have been a misdemeanor under federal law, not an

“aggravated felony.” These arguments are foreclosed. See United

States v. Rivera, 265 F.3d 310, 312-13 (5th Cir. 2001); United

States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997).

Torres contends that the district court abused its

discretion in imposing as a condition of supervised release the

requirement that Torres 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).

Torres 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

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 Torres contends that Almendarez-Torres has

been “impliedly overruled” by subsequent Supreme Court decisions, No. 05-40313 -3-

including Apprendi, “[t]his court has repeatedly rejected

arguments like the one made by [Torres] 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). Torres concedes that the issue is

foreclosed. He has raised the issue to preserve it for further

review.

JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.