United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS January 4, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_____________________ Clerk
No. 05-40335
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GILBERTO SIERRA-GARCIA,
Defendant-Appellant.
__________________
On Appeal from the United States District Court
For the Southern District of Texas
__________________
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:1
Gilberto Sierra-Garcia appeals his sentences following
two guilty pleas and convictions for illegal reentry after
deportation in violation of 8 U.S.C. § 1326 and fraudulently
securing social security payments in violation of 42 U.S.C.
§ 408(a)(4). In a motion to dismiss, the Government argues
that Sierra-Garcia’s appeal is precluded by an appellate
waiver provision in his plea agreement, and alternatively
1
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this opinion should not be published and is not precedent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.
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that the arguments are meritless and we should summarily
affirm the sentences.
Sierra-Garcia was charged with the crimes in two
separate indictments. He was first charged with and pleaded
guilty to the illegal reentry in case number B-04-281. His
guilty plea was not pursuant to any plea agreement. Sierra-
Garcia was then later charged with social security fraud in
case number B-04-390-S1. His guilty plea in that case was
pursuant to a plea agreement containing an appellate waiver
provision. The cases were then consolidated for sentencing.
The district court sentenced Sierra-Garcia to sentences of
30 months in prison on both cases to run concurrently,
followed by a three-year supervised release term on both
cases to run concurrently. One condition of Sierra-Garcia’s
supervised release is that he cooperate with the collection
of a DNA sample pursuant to 18 U.S.C. 3583(d).
For the first time on appeal, Sierra-Garcia raises two
challenges to his sentences. With respect to his illegal
reentry sentence, he argues that the sentencing enhancement
provisions of 8 U.S.C. § 1326(b) are unconstitutional.
Because Sierra-Garcia’s guilty plea on the illegal reentry
charge was entered without a plea agreement, there is no
applicable appellate waiver provision. Although the
2
Government argues that consolidation of the two cases should
expand the scope of the appellate waiver to cover both
convictions and sentences, the plea agreement plainly
applies only to case number B-04-390-S1, the social security
fraud case. As Sierra-Garcia concedes in his brief,
however, his first argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998).
With respect to both sentences, Sierra-Garcia argues
that the supervised release condition that he cooperate in
collection of a DNA sample violates the Ex Post Facto Clause
or general principles against retroactivity because his
offense and guilty plea preceded the amended DNA Act, which
authorized the condition. The Government argues that this
argument is subject to the appellate waiver at least for
purposes of Sierra-Garcia’s sentence for social security
fraud. Sierra-Garcia argues that the condition is
functionally equivalent to a sentence which exceeds the
statutory maximum, an argument that is not waived by the
plea agreement.
Whether Sierra-Garcia has waived this argument or not,
however, this court is without jurisdiction to entertain his
argument. This court recently rejected an identical
challenge, finding that imposition of DNA sample collection
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was “not a part of appellants’ sentence, but is rather a
prison condition that must be challenged through a separate
civil action after exhaustion of administrative remedies.”
See United States v. Riascos-Cuenu, --- F.3d ---, 2005 WL
2660032, *1-2 (5th Cir. Oct. 19, 2005) (quoting United
States v. Carmichael, 343 F.3d 756, 761 (5th Cir. 2003),
cert. denied, 540 U.S. 1136 (2004)). We therefore DISMISS
the appeal of the order requiring Defendant’s cooperation in
the collection of a DNA sample for lack of jurisdiction, and
we AFFIRM the remainder of the sentence imposed by the
district court.
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.
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