United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 20, 2006
Charles R. Fulbruge III
Clerk
No. 04-41702
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALICIA LOZOYA-TORRES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-632-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Alicia Lozoya-Torres (Lozoya) appeals the 46-month sentence
she received following her guilty plea conviction for illegal
reentry, in violation of 8 U.S.C. § 1326. She argues that the
district court erred in sentencing her under the mandatory
version of the Sentencing Guidelines, that the sentencing
provisions in § 1326 are unconstitutional, and that the district
court erred by ordering her to cooperate in the collection of a
DNA sample as a condition of supervised release.
*
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this opinion should not be published and is not precedent except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. 04-41702
-2-
The Government urges that Lozoya’s challenge to her sentence
imposed under a mandatory version of the guidelines is barred by
the waiver-of-appeal provision in her plea agreement. Lozoya
counters that the appeal-waiver provision is invalid because her
plea agreement was accepted before the issuance of United States
v. Booker, 543 U.S. 220 (2005). This court has recently rejected
that precise argument. United States v. Burns, 433 F.3d 442,
450-51 (5th Cir. 2005). The appeal-waiver provision is
enforceable and bars her complaint that she was sentenced under
the formerly mandatory guidelines scheme.
Lozoya’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Lozoya 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). Lozoya properly concedes that her argument is
foreclosed in light of Almendarez-Torres and circuit precedent,
but she raises it here to preserve it for further review.
Lozoya’s challenge to the special condition of supervised
release that she cooperate in the collection of a DNA sample,
even if not barred by the waiver-of-appeal provision, is not ripe
for review on direct appeal. See United States v. Riascos-Cuenu,
No. 04-41702
-3-
428 F.3d 1100, 1101-02 (5th Cir. 2005), petition for cert. filed
(Jan. 9, 2006) (No. 05-8662). That claim is dismissed for lack
of jurisdiction. See id. at 1102.
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.