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. 05-40805
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAUL HERNANDEZ-AGUIRRE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-934-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Saul Hernandez-Aguirre appeals his sentence for being an
alien unlawfully found in the United States following deportation
after having been convicted of an aggravated felony, in violation
of 8 U.S.C. § 1326(a) and (b). On appeal, he challenges the
constitutionality of § 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). Hernandez-Aguirre’s
constitutional challenge is foreclosed by Almendarez-Torres v.
*
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this opinion should not be published and is not precedent except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. 05-40805
-2-
United States, 523 U.S. 224, 235 (1998). Although Hernandez-
Aguirre 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).
Hernandez-Aguirre 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.
Hernandez-Aguirre next raises a Fourth Amendment challenge
to the collection of a DNA sample as a condition of his
supervised release. As he concedes, such a claim is not ripe for
review, and we lack jurisdiction to consider it. United States
v. Riascos-Cuenu, 428 F.3d 1100, 1101-02 (5th Cir. 2005),
petition for cert. filed (Jan 9, 2006) (No. 05-8662).
Accordingly, that portion of the appeal must be dismissed.
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.