United States v. Cardoza-Rodriguez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 28, 2006

Charles R. Fulbruge III
Clerk
No. 05-41745
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALBERTO CARDOZA-RODRIGUEZ,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-616
--------------------

Before DAVIS, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Alberto Cardoza-Rodriguez (Cardoza) appeals his guilty plea

conviction and 46-month sentence for illegally reentering the

United States after having been previously deported.

Cardoza challenges the constitutionality of 8 U.S.C.

§ 1326(b). Cardoza’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Cardoza contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule

*
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this opinion should not be published and is not precedent except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. 05-41745
-2-

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). Cardoza 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.

Cardoza 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.