United States v. Pelaes-Funtez ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 12, 2006
Charles R. Fulbruge III
Clerk
No. 05-40447
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NAVOR PELAES-FUNTEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1882-ALL
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Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Navor Pelaes-Funtez (Pelaes) appeals following his guilty-
plea to being found illegally in the United States after
deportation. Pelaes was sentenced to 50 months in prison and
three years of supervised release.
Pelaes 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 proved beyond a reasonable doubt in light of
*
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this opinion should not be published and is not precedent except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. 05-40447
-2-
Apprendi v. New Jersey, 530 U.S. 466 (2000). This argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Pelaes contends that a majority of the
Supreme Court would now consider Almendarez-Torres to be
incorrectly decided in light of Apprendi, “[t]his court has
repeatedly rejected arguments like the one made by [Pelaes] and
has held that Almendarez-Torres remains binding despite
Apprendi.” United States v. Garza-Lopez, 410 F.3d 268, 276 (5th
Cir.), cert. denied, 126 S. Ct. 298 (2005). Pelaes concedes that
the issue is foreclosed. He has raised the issue to preserve it
for further review.
Pelaes also contends that the district court abused its
discretion by imposing as a condition of supervised release that
he cooperate in the collection of a DNA sample. Because this
issue is not ripe for review, this court does not have
jurisdiction and this portion of the appeal must be dismissed.
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). Pelaes correctly concedes that the ripeness issue is
foreclosed by circuit precedent but raises his argument to
preserve it for further review.
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.