United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 12, 2006
Charles R. Fulbruge III
Clerk
No. 05-40443
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN MARTINEZ-CATALAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-2099-ALL
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Before KING, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Juan Martinez-Catalan (Martinez), appeals his guilty plea
conviction of, and sentence for, violating 8 U.S.C. § 1326 by
illegally reentering the United States after deportation. He
argues, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000),
that the 48-month term of imprisonment imposed in his case
exceeds the statutory maximum sentence allowed for the § 1326(a)
offense charged in his indictment. He challenges the
constitutionality of § 1326(b)’s treatment of prior felony and
*
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this opinion should not be published and is not precedent except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. 05-40443
-2-
aggravated felony convictions as sentencing factors rather than
elements of the offense that must be found by a jury.
Martinez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although he contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule
Almendarez-Torres in light of Apprendi, 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.
Martinez contends that the district court erred by ordering
him to cooperate in the collection of a DNA sample as a condition
of supervised release. As Martinez concedes, 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.