United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 5, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-40183
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-
Appellee,
versus
JOSE EFRAIN AYALA,
Defendant-
Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1778
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Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
Having pleaded guilty to illegal reentry following deportation in violation of 8 U.S.C. § 1326,
Jose Efrain Ayala argues that his sentence violates United States v. Booker** because the district court
applied the United States Sentencing Guidelines as mandatory rather than discretionary; that his
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
**
543 U.S. 220 (2005).
sentence under 8 U.S.C. § 1326(b) is unconstitutional in light of Apprendi v. New Jersey***; and that
district court abused its discretion by requiring that Ayala cooperate with the probation officer in the
collection of DNA as a condition of supervised release.
The Government concedes that Ayala preserved his challenge to the application of mandatory
sentencing guidelines by objecting that the sentencing proceeding violated Blakely v. Washington.****
As the sentencing transcript is devoid of evidence that the district court would have imposed the same
sentence under an advisory regime, the Government has not borne its burden of establishing that the
district court’s error was harmless. See United States v. Walters, 418 F.3d 461, 464 (5th Cir. 2005).
Ayala’s argument that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)
are unconstitutional is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Ayala 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). Ayala 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.
Ayala’s challenge to a condition of his supervised release requiring that he cooperate with the
probation officer in the collection of a DNA sample is not ripe for review on direct appeal. United
States v. Carmichael, 343 F.3d 756, 761-62 (5th Cir. 2003), cert. denied, 540 U.S. 1136 (2004); see
***
530 U.S. 466 (2000).
****
542 U.S. 296 (2004).
-2-
United States v. Riascos-Cuenu, 428 F.3d 1100, 1101-02 (5th Cir. 2005), petition for cert. filed,
(U.S. Jan. 9, 2006)(No. 8662). Accordingly, we dismiss this argument for lack of appellate
jurisdiction.
AFFIRMED IN PART; VACATED IN PART AND REMANDED FOR RESENTENCING;
DISMISSED IN PART FOR LACK OF JURISDICTION.
-3-