United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 3, 2006
Charles R. Fulbruge III
Clerk
No. 05-40412
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ITALO VARGAS-GUILLEN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-844-ALL
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Before JONES, Chief Judge, and WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Jose Italo Vargas-Guillen appeals his guilty-plea conviction
of being unlawfully present in the United States after having been
deported subsequent to an aggravated felony. Vargas-Guillen
challenges the constitutionality of 8 U.S.C. § 1326(b)’s treatment
of prior felony and aggravated felony convictions as sentencing
factors rather than elements of the offense that must be found by
a jury in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). He
also challenges the imposition of collection of his DNA as a term
*
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opinion should not be published and is not precedent except under the limited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.
of his supervised release. We need not decide the applicability of
the waiver in this case because the issues that Vargas-Guillen
raises are foreclosed or not ripe for review.
Vargas-Guillen’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Vargas-Guillen 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). Vargas-Guillen
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.
For the first time, Vargas-Guillen argues that the district
court abused its discretion in subjecting him to the collection of
DNA as a term of his supervised release under 42 U.S.C.
§ 14135A(d). He argues that the version of 42 U.S.C. § 14135a(d)
that was in effect at the time of the offense does not list his
offense of conviction as one of the offenses for which DNA
collection was authorized. He argues that the amendment of that
statute on October 30, 2004, to authorize DNA collection upon
conviction of “any felony” cannot be applied to him because
collection of DNA is a punishment and would violate the Ex Post
Facto Clause. He further argues that even if application of the
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statute is not a violation of the Ex Post Facto Clause it is still
forbidden by general principles of nonretroactivity.
Vargas-Guillen’s claim regarding collection of DNA on
supervised release is not ripe for review. See United States v.
Riascos-Cuenu, 428 F.3d 1100, 1002 (5th Cir. 2005). Vargas-
Guillen’s claim is DISMISSED for lack of jurisdiction. The
judgment of the district court is AFFIRMED.
DISMISSED IN PART; AFFIRMED IN PART.
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