United States v. Perez-Barrientos

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006

Charles R. Fulbruge III
Clerk
No. 05-40518
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAMIRO PEREZ-BARRIENTOS,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-750-ALL
--------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Ramiro Perez-Barrientos (Perez) appeals his conviction and

sentence following his guilty plea to being found in the United

States after a previous deportation.

Perez argues for the first time on appeal that the district

court abused its discretion when it imposed a condition of

supervised release that requires him to cooperate in the

collection of his DNA. Perez’s claim is not ripe for review.

See United States v. Riascos-Cuenu, 428 F.3d 1100, 1101-02 (5th

*
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this opinion should not be published and is not precedent except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. 05-40518
-2-

Cir. 2005), petition for cert. filed (Jan. 9, 2006) (No. 05-

8662). Therefore, this court lacks jurisdiction to review this

claim, and this portion of the appeal is dismissed.

Additionally, Perez’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 Perez 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). Perez

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.