United States v. Vega-Montesinos

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 30, 2005

Charles R. Fulbruge III
Clerk
No. 05-40270
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN MANUEL VEGA-MONTESINOS,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-805-ALL
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Before SMITH, GARZA and PRADO, Circuit Judges.

PER CURIAM:*

Juan Manuel Vega-Montesinos (Vega) appeals the sentence

imposed following his plea of guilty to one count of unlawful

reentry having been deported previously following an aggravated

felony conviction. Vega challenges the constitutionality of the

felony and aggravated felony provisions of 8 U.S.C.

§ 1326(b), and the district court’s order that he cooperate with

the probation officer in the collection of DNA 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this opinion should not be published and is not precedent except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. 05-40270
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Although, in a written plea agreement, Vega waived the right

to appeal his sentence except for upward departures and a

sentence exceeding the statutory maximum, the waiver does not bar

his appeal. To the extent that Vega’s challenge to the

constitutionality of § 1326(b) is construed as a challenge to his

conviction, it is not precluded by the terms of the appeal

waiver. As to his DNA claims, Vega’s waiver was rendered not

knowing and voluntary when the magistrate judge advised him at

his rearraignment hearing that he could appeal an illegal

sentence. See, e.g., United States v. Robinson, 187 F.3d 516,

517-18 (5th Cir. 1999) (discussing requirements for validity of

an appeal waiver).

Vega’s constitutional challenge to § 1326(b) is foreclosed

by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Vega 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). Vega 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.

With respect to Vega’s contention that the district court

erred in ordering, as a condition of supervised release, that he
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cooperate with the probation officer in the collection of DNA,

his claim is not ripe for judicial review in light of our holding

in United States v. Carmichael, 343 F.3d 756, 758 (5th Cir.

2003), cert. denied, 540 U.S. 1136 (2004). We reject Vega’s

contention that Carmichael is distinguishable. See United States

v. Riascos-Cuenu, 428 F.3d 1100, 1102 (5th Cir. 2005).

Accordingly, we dismiss this portion of the appeal for lack of

jurisdiction.

AFFIRMED IN PART; DISMISSED IN PART FOR LACK OF

JURISDICTION.