United States v. Fuentes-Anaya

U.S. Court of Appeals for the Fifth Circuit
United States v. Fuentes-Anaya, 158 F. App'x 576 (5th Cir. 2005)

United States v. Fuentes-Anaya

Opinion

PER CURIAM: *

Jose Antonio Fuentes-Anaya (Fuentes) pleaded guilty to illegal reentry after deportation and was sentenced to 46 months of imprisonment, two years of supervised release, and a $100 special assessment that was ordered remitted on motion of the Government.

Fuentes argues for the first time on appeal that the district court erred in ordering him to cooperate in the collection of a DNA sample as a condition of supervised release. This claim is dismissed for lack of jurisdiction because it is not ripe for review. See United States v. Riascos-Cuenu, 428 F.3d 1100 (5th Cir. 2005).

Fuentes’s constitutional challenge to 8 U.S.C. § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Fuentes contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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, — U.S.—, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Fuentes properly concedes that his argument is foreclosed in light of Almendarez *577 Torres and circuit precedent, but he raises it here to preserve it for further review.

JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART FOR LACK OF JURISDICTION.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

Reference

Full Case Name
UNITED STATES of America, Plaintiff-Appellee, v. Jose Antonio FUENTES-ANAYA, Defendant-Appellant
Status
Unpublished