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. 05-40225
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER MARTINEZ-DIAZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-809-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Javier Martinez-Diaz (Martinez) appeals his guilty plea
conviction and sentence for illegally reentering the United
States after having been deported previously following an
aggravated felony conviction. The Government argues that
Martinez’s appeal is barred by the appellate-waiver provision in
his plea agreement. We assume, arguendo only, that the waiver
does not bar the instant appeal.
Martinez argues that the district court erred by ordering
him to cooperate in the collection of a DNA sample as a condition
*
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this opinion should not be published and is not precedent except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. 05-40225
-2-
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.
Martinez also challenges the constitutionality of 8 U.S.C.
§ 1326(b). However, Martinez’s constitutional challenge is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Martinez 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). Martinez 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.