United States v. Aranda-De La Cruz

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. 05-40185 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ARMANDO ARANDA-DE LA CRUZ, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-1403-ALL -------------------- Before STEWART, DENNIS, and OWEN, Circuit Judges. PER CURIAM:* Armando Aranda-De La Cruz (Aranda) appeals following his guilty plea conviction for illegally reentering the United States after having been deported. Aranda argues that the district court erred by ordering him to cooperate in the collection of a DNA sample as a condition of his supervised release. Such a 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). * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40185 -2- Accordingly, we dismiss this claim for lack of jurisdiction. Id. at 1102. Aranda challenges the constitutionality of 8 U.S.C. § 1326(b). Aranda’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Aranda 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). Aranda concedes that his argument is foreclosed in light of Almendarez-Torres and circuit precedent, but he raises it here solely to preserve it for further review. JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.