United States v. Fuentes-Anaya

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 14, 2005 Charles R. Fulbruge III Clerk No. 05-40771 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE ANTONIO FUENTES-ANAYA, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-862-ALL -------------------- Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges. PER CURIAM:* Jose Antonio Fuentes-Anaya (Fuentes) pleaded guilty to illegal reentry after deportation and was sentenced to 46 months of imprisonment, two years of supervised release, and a $100 special assessment that was ordered remitted on motion of the Government. Fuentes argues for the first time on appeal that the district court erred in ordering him to cooperate in the collection of a DNA sample as a condition of supervised release. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40771 -2- This claim is dismissd for lack of jurisdiction because it is not ripe for review. See United States v. Riascos-Cuenu, No. 05-20037, ___ F.3d ___, 2005 WL 2660032 at *1-2 (5th Cir. Oct. 18, 2005). Fuentes’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 Fuentes 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). Fuentes 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 FOR LACK OF JURISDICTION.