United States v. Castaneda-Salgado

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 24, 2006 Charles R. Fulbruge III Clerk No. 05-40902 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus EDGAR CASTANEDA-SALGADO, also known as Guadalupe Guerra, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:05-CR-62-1 -------------------- Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:* Edgar Castaneda-Salgado, also known as Guadalupe Guerra, appeals his guilty-plea conviction and sentence for illegal reentry following deportation in violation of 8 U.S.C. § 1326.

Castaneda-Salgado raises a Fourth Amendment challenge to the collection of a DNA sample as a condition of his supervised release. As Castaneda-Salgado concedes, such a claim is not ripe for review, and we lack jurisdiction to consider it. See United States v. Riascos-Cuenu, 428 F.3d 1100, 1102 (5th Cir. 2005), No. 05-40902 -2- petition for cert. filed (Jan. 9, 2006) (No. 05-8662).

Accordingly, that portion of the appeal must be dismissed.

Castaneda-Salgado also challenges the constitutionality of § 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).

Castaneda-Salgado’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Castaneda-Salgado contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi, 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). Castaneda-Salgado properly concedes that his argument is foreclosed in light of Almendarez-Torres and circuit precedent, but raises it here to preserve it for further review.

JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.