United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 2, 2006
_______________________ Charles R. Fulbruge III
Clerk
No. 05-40446
Summary Calendar
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUCIO BENITO LARA-MAGDALENA,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
No. 1:04-CR-820-ALL
________________________________________________________________
Before JONES, Chief Judge, and DeMOSS and STEWART, Circuit Judges.
PER CURIAM:*
Lucio Benito Lara-Magdalena (“Lara”) appeals his guilty-
plea conviction for being an alien unlawfully found in the United
States after deportation, having been previously convicted of a
felony, in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(1).
Lara argues, inter alia, that the district court abused
its discretion when it ordered as a condition of supervised release
that he cooperate in the collection of a DNA sample from him. In
United States v. Riascos-Cuenu, 428 F.3d 1100 (5th Cir. 2005), this
*
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should not be published and is not precedent except under the limited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.
court held that a similar claim brought for the first time on
appeal by a federal prisoner was not ripe for review, as “it
remains conjecture whether [the prisoner’s] DNA sample will be
taken while he is on supervised release.” Id. at 1102. Lara’s
appeal is factually distinguishable from Riascos-Cuenu, in that
Lara is now on supervised release, but his appeal is nevertheless
deficient. First, if Lara provided a DNA sample to the Bureau of
Prisons while incarcerated, his claim is moot, as he will not be
asked to provide an additional DNA sample during his period of
supervised release. See United States v. Carmichael, 343 F.3d 756,
761 (5th Cir. 2003). Second, as an alien having been convicted of
a felony, Lara would have been deported upon his release from
prison in January 2006. Even assuming arguendo that Lara did not
provide a DNA sample during his incarceration, it is pure
conjecture to assert that an individual no longer within the
jurisdiction of the United States will be made to provide a DNA
sample during his period of supervised release. Thus, regardless
of whether Lara has provided a DNA sample to the Bureau of Prisons,
this court lacks jurisdiction over his claim.
Lara also asserts that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional.
Rodriguez's constitutional challenge is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 235, 118 S. Ct. 1219, 1226
(1998). Although Lara contends that Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court would
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now overrule the case, 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. 2005). Lara
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.
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