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. 05-20053
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EPIFANIO ENRIQUEZ-GUEVARA, also known as Heriberto Gil
Martinez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-343-1
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Epifanio Enriquez-Guevara (Enriquez) pleaded guilty to
illegal reentry after deportation following conviction for an
aggravated felony and was sentenced to 46 months of imprisonment
and three years of supervised release.
Enriquez argues that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b) are unconstitutional. This
argument is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998). Although Enriquez contends that
*
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this opinion should not be published and is not precedent except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. 05-20053
-2-
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). Enriquez
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.
Enriquez also argues that the district court erred by
ordering him to cooperate in the collection of a DNA sample as a
condition of supervised release. This claim is not ripe for
review on direct appeal. See United States v. Riascos-Cuenu, 428
F.3d 1100, 1101-02 (5th Cir. 2005), petition for cert. filed
(Jan. 9, 2006)(No. 05-8662). The claim is dismissed. See id. at
1102.
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.