United States v. Argueta-Ramirez

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. 05-40530 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LUCAS ORLANDO ARGUETA-RAMIREZ, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-1352-ALL -------------------- Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:* Lucas Orlando Argueta-Ramirez appeals his guilty-plea conviction and sentence for illegal entry, in violation of 8 U.S.C. § 1326. The Government’s motion to supplement the record on appeal is GRANTED. Argueta-Ramirez’s motion to strike the Government’s brief, in whole or in part, is DENIED.

Argueta-Ramirez argues first that the district court plainly erred when it classified his prior state conviction as a drug trafficking offense that warranted a 12-level enhancement under

No. 05-40530 -2- U.S.S.G. § 2L1.2(b)(1)(B). Argueta-Ramirez is correct.

California Health & Safety Code § 11352(a), the state statute under which Argueta-Ramirez was convicted, is worded so that some, but not all, violations of the statute constitute a drug trafficking offense consistent with the guidelines definition, and the documents introduced by the Government to support the enhancement indicate only that Argueta-Ramirez had been convicted of violating that state statute. See United States v. Garza- Lopez, 410 F.3d 268, 273-74 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005); United States v. Gutierrez-Ramirez, 405 F.3d 352, 352-60, cert. denied, 126 S. Ct. 217 (2005). Moreover, the statements made by the district court after Argueta-Ramirez’s plea was entered do not enlighten this court as to the basis for the district court’s adjudication of guilt. See Shepard v. United States, 125 S. Ct. 1254, 1257 (2005); see also Garza- Lopez, 410 F.3d at 274.

Argueta-Ramirez 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 States v. Riascos-Cuenu, 428 F.3d 1100, 1101-02 (5th Cir. 2005). Argueta-Ramirez properly concedes that his argument is foreclosed in light of Riascos-Cuenu, but he raises it here to preserve it for further review.

No. 05-40530 -3- Finally, Argueta-Ramirez 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). This constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Argueta-Ramirez 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 (2000), we have repeatedly rejected such arguments on the basis that Almendarez-Torres remains binding. See Garza-Lopez, 410 F.3d at 276. Argueta- Ramirez 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.

APPEAL DISMISSED IN PART FOR LACK OF JURISDICTION; CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED; MOTION TO SUPPLEMENT RECORD GRANTED; MOTION TO STRIKE BRIEF DENIED.