United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 13, 2007
Charles R. Fulbruge III
Clerk
No. 04-21009
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODOLFO AMADOR-FLORES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-300-ALL
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Before BARKSDALE, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Rodolfo Amador-Flores (Amador) appeals his guilty-plea
conviction of, and sentence for, violating 8 U.S.C. § 1326 by
being found in the United States without permission after
deportation. He argues, in light of Apprendi v. New Jersey,
530 U.S. 466 (2000), that the 57-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 aggravated felony convictions as sentencing
*
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this opinion should not be published and is not precedent except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. 04-21009
-2-
factors rather than elements of the offense that must be found by
a jury.
Amador’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). Amador
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.
Amador also 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. Carmichael, 343 F.3d 756,
761-62 (5th Cir. 2003). Accordingly, this portion of the appeal
is dismissed for lack of jurisdiction.
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.