United States v. Diaz-Perez

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 11, 2006 Charles R. Fulbruge III Clerk No. 05-20507 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus VALENTINE DIAZ-PEREZ, also known as Sergio Cabraba, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 4:04-CR-530-ALL -------------------- Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:* Valentine Diaz-Perez appeals his guilty plea conviction and sentence for being found unlawfully in the United States after having been deported. The district court sentenced Diaz-Perez to months of imprisonment and three years of supervised release.

Diaz-Perez first challenges the 16-level sentencing enhancement he received under U.S.S.G. § 2L1.2(b)(1)(A)(ii), arguing that the district court erred by finding that his prior Texas conviction for burglary of a habitation constitutes a No. 05-20507 -2- “crime of violence.” The district court correctly found that Diaz-Perez’s prior conviction for burglary of a habitation was a conviction for a crime of violence under § 2L1.2(b)(1)(A)(ii).

See United States v. Hornsby, 88 F.3d 336, 339 (5th Cir. 1996); United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005), cert. denied, 126 S. Ct. 1398 (2006).

Diaz-Perez 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. As Diaz-Perez concedes, this claim is not ripe for review on direct appeal. See United States v. Riascos-Cuenu, 428 F.3d 1100, 1102 (5th Cir. 2005), petition for cert. filed (Jan. 9, 2006) (No. 05-8662). Accordingly, this claim is dismissed.

In his final argument, Diaz-Perez contends that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Diaz-Perez’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Diaz-Perez 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).

Diaz-Perez properly concedes that his argument is foreclosed in No. 05-20507 -3- light of Almendarez-Torres and circuit precedent, but he raises it here to preserve it for further review.

JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.