USA v. Resendiz-Rios

Filing 920060518

Opinion

United States Court of Appeals Fifth Circuit

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

F I L E D
May 18, 2006 Charles R. Fulbruge III Clerk

No. 05-40157 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GABRIEL RESENDIZ-RIOS, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-782-ALL -------------------Before SMITH, GARZA, and PRADO, Circuit Judges. PER CURIAM:* Gabriel Resendiz-Rios (Resendiz) appeals the sentence imposed following his guilty-plea conviction of unlawful entering the United States after having been deported previously following an aggravated felony conviction. Resendiz challenges the

constitutionality of the felony and aggravated felony provisions of 8 U.S.C. § 1326(b) and the district court's order that he

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40157 -2cooperate with the probation officer in the collection of DNA as a condition of supervised release. Although, in a written plea agreement, Resendiz waived the right to appeal his sentence except for upward departures and a sentence exceeding the statutory maximum, the Government does not seek enforcement of the waiver. bar this appeal. Accordingly, the waiver does not

See United States v. Story, 439 F.3d 226, 230-

31 (5th Cir. 2006). Resendiz's constitutional challenge to § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Resendiz 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). Resendiz 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. Resendiz 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. review on direct appeal. This claim is not ripe for

See United States v. Riascos-Cuenu, 428

F.3d 1100, 1101-02 (5th Cir. 2005), petition for cert. filed

No. 05-40157 -3(Jan. 9, 2006) (No. 05-8662). at 1102. JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART. The claim is dismissed. See id.