United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
THE FIFTH CIRCUIT January 24, 2007
Charles R. Fulbruge III
Clerk
No. 05-40550
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE GUADALUPE RUIZ-CARMONA,
also known as Javier Perez,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(5:04-CR-1767-ALL)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
On several bases, Jorge Guadalupe Ruiz-Carmona challenges his
conviction and sentence, following pleading guilty to being
illegally present in this country after having been deported in
violation of 8 U.S.C. § 1326.
First, Ruiz claims the district court erred by failing to rule
on his downward-departure motion, as required by Federal Rule of
Criminal Procedure 32(i)(3)(B). This court lacks jurisdiction to
*
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this opinion should not be published and is not precedent except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.
review a refusal to depart downward, unless there is some
indication the district court erroneously believed it lacked the
authority to do so. United States v. Hernandez, 457 F.3d 416, 424
n.5 (5th Cir. 2006).
Immediately before sentencing Ruiz, the district court heard
Ruiz’s arguments supporting his downward-departure motion.
Although the court did not explicitly rule on the motion, it
implicitly denied it by imposing a sentence within the Guideline
range. Because the record does not suggest the district court
believed it lacked authority to depart in Ruiz’s case, this court
lacks jurisdiction to consider this claim. Id.
Ruiz next contends, for the first time on appeal, that the
district court abused its discretion by imposing a supervised-
release condition requiring him to cooperate in the collection of
his DNA. This contention is not ripe for review and is therefore
dismissed for lack of jurisdiction. See United States v. Riascos-
Cuenu, 428 F.3d 1100, vacated on other grounds, --– S. Ct. -––,
2006 WL 123289 (U.S. Dec. 11, 2006); United States v. Carmichael,
343 F.3d 756, 760-62 (5th Cir. 2003). Ruiz acknowledges this
argument is foreclosed, but raises it to preserve it for further
review.
As stated, the Supreme Court recently granted certiorari in
Riascos-Cuenu, vacated the holding, and remanded for consideration
in the light of Lopez v. Gonzales, 549 U.S. -–– (2006).
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Riascos-Cuenu v. United States, --- S. Ct. ---, 2006 WL 123289, *1
(2006). Lopez does not concern DNA-collection sentencing; but,
even if we have jurisdiction to review Ruiz’s claim, our review, in
the alternative, would be only for plain error because, as noted,
Ruiz failed to raise his objection at sentencing. See FED. R. CRIM.
P. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993).
Under plain-error review, Ruiz must show a clear or obvious
error affecting his substantial rights. Id. If he satisfies those
criteria, this court may correct the forfeited error only if it
“seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings”. Id. (internal quotation omitted). Ruiz
fails to show the district court made a clear or obvious error.
Finally, Ruiz challenges the constitutionality of § 1326(b) in
the light of Apprendi v. New Jersey, 530 U.S. 466 (2000). This
challenge is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998). Although Ruiz maintains Almendarez-Torres
was decided incorrectly and that a majority of the Supreme Court
would overrule Almendarez-Torres in the light of Apprendi, we have
repeatedly rejected such arguments. See United States v.
Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct.
298 (2005). Ruiz concedes his argument is foreclosed by
Almendarez-Torres, but raises it to preserve it for further review.
AFFIRMED IN PART; DISMISSED IN PART
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