USA v. Vargas-Garcia

Filing 920060223

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 23, 2006 Charles R. Fulbruge III Clerk No. 05-40360 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RAIMUNDO VARGAS-GARCIA, Defendant-Appellee. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-729-ALL -------------------Before GARZA, DENNIS, and PRADO, Circuit Judges. PER CURIAM:* Raimundo Vargas-Garcia (Vargas) appeals from his conviction of illegal reentry following deportation, pursuant to 8 U.S.C. § 1326. Vargas contends for the first time on appeal that the district court erred in ordering him to cooperate in the collection of a DNA sample as a condition of supervised release and that this condition should therefore be vacated. This claim

is dismissed for lack of jurisdiction because it is not ripe for

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40360 -2review. See United States v. Riascos-Cuenu, 428 F.3d 1000, 1102

(5th Cir. 2005), petition for cert. filed (Jan. 9, 2005) (No. 058662). Vargas next argues, for the first time on appeal, that his previous state offense of burglary of a habitation did not constitute a "crime of violence" for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii). He correctly concedes that his argument

is foreclosed by United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005), petition for cert. filed (Dec. 15, 2005)(No. 05-8542), but he raises the argument to preserve it for further review. He also argues that Garcia-Mendez was We do not disturb our holding in Garcia-

incorrectly decided. Mendez.

See United States v. Taylor, 933 F.2d 307, 313 (5th Cir.

1991) (one panel of this court may not overrule another panel). Vargas finally challenges the constitutionality of 8 U.S.C. § 1326(b). His constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Vargas 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). Vargas properly concedes that his

argument is foreclosed in light of Almendarez-Torres and circuit

No. 05-40360 -3precedent, but he raises it here to preserve it for further review. JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.