USA v. Vargas-Guillen
Filing
920060303
Opinion
United States Court of Appeals Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 3, 2006 Charles R. Fulbruge III Clerk No. 05-40412 Summary Calendar
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE ITALO VARGAS-GUILLEN, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-844-ALL -------------------Before JONES, Chief Judge, and WIENER and DeMOSS, Circuit Judges. PER CURIAM:* Jose Italo Vargas-Guillen appeals his guilty-plea conviction of being unlawfully present in the United States after having been deported subsequent to an aggravated felony. Vargas-Guillen
challenges the constitutionality of 8 U.S.C. § 1326(b)'s treatment of prior felony and aggravated felony convictions as sentencing factors rather than elements of the offense that must be found by a jury in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). He
also challenges the imposition of collection of his DNA as a term
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*
of his supervised release. We need not decide the applicability of the waiver in this case because the issues that Vargas-Guillen raises are foreclosed or not ripe for review. Vargas-Guillen's constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Vargas-Guillen 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 denied, 126 S. Ct. 298 (2005). Vargas-Guillen
Cir.), cert.
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. For the first time, Vargas-Guillen argues that the district court abused its discretion in subjecting him to the collection of DNA as a term of his supervised release under 42 U.S.C.
§ 14135A(d).
He argues that the version of 42 U.S.C. § 14135a(d)
that was in effect at the time of the offense does not list his offense of conviction as one of the offenses for which DNA
collection was authorized.
He argues that the amendment of that
statute on October 30, 2004, to authorize DNA collection upon conviction of "any felony" cannot be applied to him because
collection of DNA is a punishment and would violate the Ex Post Facto Clause. He further argues that even if application of the 2
statute is not a violation of the Ex Post Facto Clause it is still forbidden by general principles of nonretroactivity. Vargas-Guillen's claim regarding collection of DNA on
supervised release is not ripe for review.
See United States v. VargasThe
Riascos-Cuenu, 428 F.3d 1100, 1002 (5th Cir. 2005). Guillen's claim is DISMISSED for lack of
jurisdiction.
judgment of the district court is AFFIRMED. DISMISSED IN PART; AFFIRMED IN PART.
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