USA v. Ruiz-Carmona

Filing 920070124

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
UNITED STATES COURT OF APPEALS THE FIFTH CIRCUIT January 24, 2007 Charles R. Fulbruge III Clerk No. 05-40550 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JORGE GUADALUPE RUIZ-CARMONA, also known as Javier Perez, Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas (5:04-CR-1767-ALL) Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges. PER CURIAM:* On several bases, Jorge Guadalupe Ruiz-Carmona challenges his conviction and sentence, following pleading guilty to being

illegally present in this country after having been deported in violation of 8 U.S.C. § 1326. First, Ruiz claims the district court erred by failing to rule on his downward-departure motion, as required by Federal Rule of Criminal Procedure 32(i)(3)(B). This court lacks jurisdiction to

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

*

review

a

refusal

to

depart

downward,

unless

there

is

some

indication the district court erroneously believed it lacked the authority to do so. n.5 (5th Cir. 2006). Immediately before sentencing Ruiz, the district court heard Ruiz's arguments supporting his downward-departure motion. United States v. Hernandez, 457 F.3d 416, 424

Although the court did not explicitly rule on the motion, it implicitly denied it by imposing a sentence within the Guideline range. Because the record does not suggest the district court

believed it lacked authority to depart in Ruiz's case, this court lacks jurisdiction to consider this claim. Id.

Ruiz next contends, for the first time on appeal, that the district court abused its discretion by imposing a supervisedrelease condition requiring him to cooperate in the collection of his DNA. This contention is not ripe for review and is therefore See United States v. Riascos-

dismissed for lack of jurisdiction.

Cuenu, 428 F.3d 1100, vacated on other grounds, --­ S. Ct. -­­, 2006 WL 123289 (U.S. Dec. 11, 2006); United States v. Carmichael, 343 F.3d 756, 760-62 (5th Cir. 2003). Ruiz acknowledges this

argument is foreclosed, but raises it to preserve it for further review. As stated, the Supreme Court recently granted certiorari in Riascos-Cuenu, vacated the holding, and remanded for consideration in the light of Lopez v. Gonzales, 2 549 U.S. -­­ (2006).

Riascos-Cuenu v. United States, --- S. Ct. ---, 2006 WL 123289, *1 (2006). Lopez does not concern DNA-collection sentencing; but,

even if we have jurisdiction to review Ruiz's claim, our review, in the alternative, would be only for plain error because, as noted, Ruiz failed to raise his objection at sentencing. See FED. R. CRIM.

P. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993). Under plain-error review, Ruiz must show a clear or obvious error affecting his substantial rights. Id. If he satisfies those

criteria, this court may correct the forfeited error only if it "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings". Id. (internal quotation omitted). Ruiz

fails to show the district court made a clear or obvious error. Finally, Ruiz challenges the constitutionality of § 1326(b) in the light of Apprendi v. New Jersey, 530 U.S. 466 (2000). This

challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Ruiz maintains Almendarez-Torres

was decided incorrectly and that a majority of the Supreme Court would overrule Almendarez-Torres in the light of Apprendi, we have repeatedly rejected such arguments. See United States v.

Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Ruiz concedes his argument is foreclosed by

Almendarez-Torres, but raises it to preserve it for further review. AFFIRMED IN PART; DISMISSED IN PART

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