USA v. Acuna-Salazar

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. 05-40635 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BALDOMERO ACUNA-SALAZAR, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-279-ALL -------------------Before GARZA, DENNIS, and PRADO, Circuit Judges. PER CURIAM:* Baldomero Acuna-Salazar (Acuna) pleaded guilty to illegal reentry after deportation and was sentenced to 70 months of imprisonment and two years of supervised release. Acuna's

constitutional challenge to the "felony" and "aggravated felony" provisions of 8 U.S.C. § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Acuna contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40635 -2Almendarez-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). Acuna 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. Acuna also argues 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 See United States v.

because it is not ripe for review.

Riascos-Cuenu, 428 F.3d 1100, 1101-02 (5th Cir. 2005), petition for cert. filed (Jan. 9, 2006) (No. 05-8662). JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.