United States v. Vargas-Garcia

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006
Charles R. Fulbruge III
Clerk
No. 05-40360
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAIMUNDO VARGAS-GARCIA,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-729-ALL
--------------------
Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Raimundo Vargas-Garcia (Vargas) appeals from his conviction
of illegal reentry following deportation, pursuant to 8 U.S.C.
§ 1326.
Vargas contends for the first time on appeal that the
district court erred in ordering him to cooperate in the
collection of a DNA sample as a condition of supervised release
and that this condition should therefore be vacated. This claim
is dismissed for lack of jurisdiction because it is not ripe for
*
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this opinion should not be published and is not precedent except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. 05-40360
-2-
review. See United States v. Riascos-Cuenu, 428 F.3d 1000, 1102
(5th Cir. 2005), petition for cert. filed (Jan. 9, 2005) (No. 05-
8662).
Vargas next argues, for the first time on appeal, that his
previous state offense of burglary of a habitation did not
constitute a “crime of violence” for purposes of U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). He correctly concedes that his argument
is foreclosed by United States v. Garcia-Mendez, 420 F.3d 454,
456-57 (5th Cir. 2005), petition for cert. filed (Dec. 15,
2005)(No. 05-8542), but he raises the argument to preserve it for
further review. He also argues that Garcia-Mendez was
incorrectly decided. We do not disturb our holding in Garcia-
Mendez. See United States v. Taylor, 933 F.2d 307, 313 (5th Cir.
1991) (one panel of this court may not overrule another panel).
Vargas finally challenges the constitutionality of 8 U.S.C.
§ 1326(b). His constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Vargas contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule
Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S.
466 (2000), 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). Vargas properly concedes that his
argument is foreclosed in light of Almendarez-Torres and circuit
No. 05-40360
-3-
precedent, but he raises it here to preserve it for further
review.
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.