USA v. Cardoza-Rodriguez

Filing 920060828

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 28, 2006 Charles R. Fulbruge III Clerk No. 05-41745 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ALBERTO CARDOZA-RODRIGUEZ, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 1:05-CR-616 -------------------Before DAVIS, SMITH, and WIENER, Circuit Judges. PER CURIAM:* Alberto Cardoza-Rodriguez (Cardoza) appeals his guilty plea conviction and 46-month sentence for illegally reentering the United States after having been previously deported. Cardoza challenges the constitutionality of 8 U.S.C. § 1326(b). Cardoza's constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Cardoza 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-41745 -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). Cardoza 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. Cardoza argues that the district court erred by ordering him to cooperate in the collection of a DNA sample as a condition of supervised release. appeal. This claim is not ripe for review on direct

See United States v. Riascos-Cuenu, 428 F.3d 1100,

1101-02 (5th Cir. 2005), petition for cert. filed (Jan. 9, 2006) (No. 05-8662). The claim is dismissed. See id. at 1102.

JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.