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
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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this opinion should not be published and is not precedent except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.