United States v. Zambrano-Duenez

169 F. App'x 193

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. 05-40292 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

AMADOR ZAMBRANO-DUENEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-1503-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Amador Zambrano-Duenez (Zambrano) appeals his sentence under

8 U.S.C. § 1326 for illegal reentry into the United States after

having been deported. Zambrano asserts 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. He contends that the

collection of his DNA violates the Ex Post Facto Clause.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40292 -2-

In United States v. Riascos-Cuenu, 428 F.3d 1100, 1102 (5th

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

which was decided after Zambrano filed his brief, this court

declined to address such an argument on the ground that the claim

was not ripe for review. In accordance with Riascos-Cuenu, this

court lacks jurisdiction over this argument.

Zambrano also argues that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional.

This challenge is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224, 235 (1998). Although Zambrano 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).

Zambrano 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.