United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 14, 2007
Charles R. Fulbruge III
Clerk
No. 06-40631
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIANO ORNELAS-ARAIZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-852-ALL
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Before BARKSDALE, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Mariano Ornelas-Araiza (Ornelas) appeals his guilty-plea
conviction and sentence for being an alien found unlawfully in
the United States after deportation and after having been
convicted of an aggravated felony. He was sentenced to 77 months
of imprisonment and three years of supervised release.
Ornelas argues that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional.
Ornelas’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
*
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this opinion should not be published and is not precedent except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. 06-40631
-2-
Although Ornelas contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule
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). Ornelas 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.
Ornelas also argues that the district court erred in
ordering him to cooperate in the collection of a DNA sample as a
condition of supervised release and, therefore, that this
condition should be vacated. As Ornelas concedes, this claim is
not ripe for review. 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.