United States v. Gomez-Vasquez ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 20, 2006
Charles R. Fulbruge III
Clerk
No. 05-40164
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO GOMEZ-VASQUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-675-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Francisco Gomez-Vasquez (Gomez) appeals his guilty-plea
conviction and sentence for being found unlawfully in the United
States after having been deported. The district court sentenced
Gomez to 82 months of imprisonment and three years of supervised
release.
Gomez argues 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). Gomez’s
constitutional challenge is foreclosed by Almendarez-Torres v.
*
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this opinion should not be published and is not precedent except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.
No. 05-40164
-2-
United States, 523 U.S. 224, 235 (1998). Although Gomez 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). Gomez 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.
Gomez also argues that the district court erred by ordering
him to cooperate in the collection of a DNA sample as a condition
of supervised release. This claim is not ripe for review on
direct appeal. See United States v. Riascos-Cuenu, 428 F.3d
1100, 1101-02 (5th Cir. 2005), petition for cert. filed (Jan. 9,
2006) (No. 05-8662). The claim is dismissed. See id. at 1102.
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.