United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 5, 2006
Charles R. Fulbruge III
Clerk
No. 05-40403
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERNANDO QUEVEDO-ALVAREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-855-ALL
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Fernando Quevedo-Alvarez (Quevedo) pleaded guilty to illegal
reentry after deportation and was sentenced to 33 months of
imprisonment, three years of supervised release, and a $100
special assessment that was ordered remitted on motion of the
Government.
Quevedo 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 and that this
*
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this opinion should not be published and is not precedent except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. 05-40403
-2-
condition should therefore be vacated. He contends that his
offense is not one of the offenses qualifying an offender for DNA
collection under the DNA Analysis Backlog Elimination Act of 2000
(Act). He further contends that a 2004 amendment to the Act
broadening the qualifying offenses to “any felony” does not apply
to him because he committed the offense before the amendment was
enacted, and, therefore, application of the amendment either
would violate the Ex Post Facto Clause or would improperly cause
the amendment to operate retroactively.
Quevedo contends that a waiver-of appeal provision included
in his plea agreement does not bar this claim. Because the
district court erroneously advised Quevedo that he retained the
right to appeal “an illegal sentence,” without defining what
constituted “an illegal sentence,” the waiver was not made
knowingly and voluntarily, and thus it does not bar this claim.
See United States v. Robinson, 187 F.3d 516, 517 (5th Cir. 1999).
However, this claim is DISMISSED 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 *2 (5th Cir. Oct.
18, 2005).
Quevedo’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Quevedo 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.
No. 05-40403
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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). Quevedo 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.