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. 05-40530
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUCAS ORLANDO ARGUETA-RAMIREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1352-ALL
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Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Lucas Orlando Argueta-Ramirez appeals his guilty-plea
conviction and sentence for illegal entry, in violation of 8
U.S.C. § 1326. The Government’s motion to supplement the record
on appeal is GRANTED. Argueta-Ramirez’s motion to strike the
Government’s brief, in whole or in part, is DENIED.
Argueta-Ramirez argues first that the district court plainly
erred when it classified his prior state conviction as a drug
trafficking offense that warranted a 12-level enhancement under
*
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this opinion should not be published and is not precedent except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. 05-40530
-2-
U.S.S.G. § 2L1.2(b)(1)(B). Argueta-Ramirez is correct.
California Health & Safety Code § 11352(a), the state statute
under which Argueta-Ramirez was convicted, is worded so that
some, but not all, violations of the statute constitute a drug
trafficking offense consistent with the guidelines definition,
and the documents introduced by the Government to support the
enhancement indicate only that Argueta-Ramirez had been convicted
of violating that state statute. See United States v. Garza-
Lopez, 410 F.3d 268, 273-74 (5th Cir.), cert. denied, 126 S. Ct.
298 (2005); United States v. Gutierrez-Ramirez, 405 F.3d 352,
352-60, cert. denied, 126 S. Ct. 217 (2005). Moreover, the
statements made by the district court after Argueta-Ramirez’s
plea was entered do not enlighten this court as to the basis for
the district court’s adjudication of guilt. See Shepard v.
United States, 125 S. Ct. 1254, 1257 (2005); see also Garza-
Lopez, 410 F.3d at 274.
Argueta-Ramirez 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.
This claim is dismissed for lack of jurisdiction because it is
not ripe for review. See States v. Riascos-Cuenu, 428 F.3d 1100,
1101-02 (5th Cir. 2005). Argueta-Ramirez properly concedes that
his argument is foreclosed in light of Riascos-Cuenu, but he
raises it here to preserve it for further review.
No. 05-40530
-3-
Finally, Argueta-Ramirez 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). This constitutional challenge
is foreclosed by Almendarez-Torres v. United States, 523 U.S.
224, 235 (1998). Although Argueta-Ramirez 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 Garza-Lopez, 410 F.3d at 276. Argueta-
Ramirez 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.
APPEAL DISMISSED IN PART FOR LACK OF JURISDICTION;
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED; MOTION TO
SUPPLEMENT RECORD GRANTED; MOTION TO STRIKE BRIEF DENIED.