USA v. Casillas

Filing 920060413

Opinion

United States Court of Appeals Fifth Circuit

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

F I L E D
April 13, 2006 Charles R. Fulbruge III Clerk

No. 05-40361 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus PEDRO CASILLAS, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-619-ALL -------------------Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges. PER CURIAM:* Pedro Casillas appeals his guilty-plea conviction and sentence for possessing with the intent to distribute heroin. We affirm the district court's judgment. Casillas, who was sentenced after the Supreme Court issued its decision in United States v. Booker, 543 U.S. 220 (2005), argues that he is entitled to retroactive application of Booker's Sixth Amendment holding, but that the remedial portion of Booker's holding, which made the United States 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40361 -2Guidelines advisory, may not be applied in his case without violating the Due Process and Ex Post Facto Clauses of the Constitution. precedent. Casillas's argument is foreclosed by this court's

See United States v. Austin, 432 F.3d 598, 599-600

(5th Cir. 2005); United States v. Scroggins, 411 F.3d 572, 575-76 (5th Cir. 2005). Casillas argues, for the first time on appeal, that 21 U.S.C. § 841(b)(1)(A) and (B) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). As Casillas

concedes, that argument also is foreclosed by this court's precedent. See United States v. Slaughter, 238 F.3d 580, 582 Casillas raises the issue solely to preserve it

(5th Cir. 2000).

for Supreme Court review. Casillas next argues that the district court erred in ordering him to cooperate in the collection of a DNA sample as a condition of supervised release. Casillas's claim is not ripe

for review and is therefore dismissed for lack of jurisdiction. See United States v. Riascos-Cuenu, 428 F.3d 1100, 1102 (5th Cir. 2005), petition for cert. filed (Jan. 9, 2006) (No. 05-8662); United States v. Carmichael, 343 F.3d 756, 757, 761-62 (5th Cir. 2003). Finally, Casillas argues that we should remand his case to the district court for correction of a clerical error in the judgment. The Government concedes that remand is appropriate

because the judgment erroneously reflects that Casillas was

No. 05-40361 -3convicted of a drug offense involving 3.96 kilograms of heroin when in fact, he was convicted of an offense involving only 2.28 kilograms of heroin. Accordingly, this case is REMANDED to the

district court for the limited purpose of correcting the clerical error. See FED. R. CRIM. P. 36.

AFFIRMED; APPEAL DISMISSED IN PART FOR LACK OF JURISDICTION; REMANDED FOR CORRECTION OF CLERICAL ERROR IN JUDGMENT