United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 13, 2006
Charles R. Fulbruge III
Clerk
No. 05-20034
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN GONZALEZ-RUIZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-475-ALL
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Juan Gonzalez-Ruiz (Gonzalez) appeals his conviction and
sentence for illegal reentry following deportation. Gonzalez
argued that the district court committed reversible error under
United States v. Booker, 543 U.S. 220 (2005), by sentencing him
pursuant to a mandatory application of the Sentencing Guidelines.
The Government concedes that Gonzalez has preserved this issue
for appeal. The Government, however, has not shown beyond a
reasonable doubt that the error was harmless. See United States
*
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this opinion should not be published and is not precedent except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. 05-20034
-2-
v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005). Accordingly,
Gonzalez’s sentence is vacated, and this case is remanded for
resentencing.
Gonzalez also argues that the district court erred in
ordering, as a condition of supervised release, that he cooperate
with collection of a DNA sample. Gonzalez acknowledges that this
court determined this issue is not ripe for review in United
States v. Riascos-Cuenu, 428 F.3d 110, 1102 (5th Cir. 2005),
petition for cert. filed, (Jan. 9, 2006) (No. 05-8662), but
raises it to preserve it for further review. Accordingly, this
issue is dismissed for lack of jurisdiction.
Gonzalez’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 Gonzalez contends that Almendarez-Torres
was incorrectly decided and that a majority of the Supreme Court
would overrule Almendarez-Torres in light of Apprendi, 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).
Gonzalez 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.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING; APPEAL DISMISSED IN PART.