U.S. Court of Appeals for the Fifth Circuit, 2006

United States v. Rodriguez-Ruiz

United States v. Rodriguez-Ruiz
U.S. Court of Appeals for the Fifth Circuit · Decided February 23, 2006 · Dennis, Garza, Prado
169 F. App'x 212

United States v. Rodriguez-Ruiz

Opinion of the Court

PER CURIAM: *

Ramon Rodriguez-Ruiz (Rodriguez) appeals his conviction and sentence following his plea of guilty to illegal reentry after deportation. Rodriguez was sentenced to 46 months of imprisonment and three years of supervised release. Rodriguez asserts that the district court erred in ordering, as a condition of supervised release, that he cooperate with the probation officer in the collection of DNA. His claim is not ripe for judicial review in light of our holding in United States v. Riascos-Cuenu, 428 F.3d 1100, 1101-02 (5th Cir. 2005), petition for cert, filed (Jan. 9, 2006) (No. 05-8662). Accordingly, we dismiss this portion of the appeal for lack of jurisdiction.

Rodriguez also asserts that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional. Rodriguez’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Rodriguez contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrale 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 re*213mains 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). Rodriguez 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.

JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under tire limited circumstances set forth in 5th Cir. R. 47.5.4.

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