United States v. Garcia-Garcia

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 24, 2006
Charles R. Fulbruge III
Clerk
No. 05-41839
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RENE GARCIA-GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-657
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Rene Garcia-Garcia (Garcia) appeals his guilty-plea
conviction and 77-month sentence for being present in the United
States after a prior deportation following an aggravated felony
conviction. Garcia contends that the district court erred in
treating his Texas burglary of a habitation conviction as a crime
of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Garcia’s
argument has been rejected by this court. See United States v.
Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005), cert.
denied, 126 S. Ct. 1398 (2006); United States v. Valdez-Maltos,
*
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this opinion should not be published and is not precedent except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. 05-41839
-2-
443 F.3d 910, 911 (5th Cir.), cert. denied, 2006 WL 2094539 (Oct.
2, 2006) (No. 06-5473). Further, Garcia’s argument that this
court erroneously relied on United States v. Hornsby, 88 F.3d
336, 339 (5th Cir. 1996), and did not properly apply the
categorical analysis of Taylor v. United States, 495 U.S. 575(1990), is tantamount to arguing that Garcia-Mendez was wrongly
decided. One panel of this court may not ignore the precedent
set by a prior panel. United States v. Ruiz, 180 F.3d 675, 676
(5th Cir. 1999).
Garcia also challenges, in light of Apprendi v. New Jersey,
530 U.S. 466 (2000), the constitutionality of 8 U.S.C.
§ 1326(b)’s treatment of prior felony and aggravated felony
convictions as sentencing factors rather than as elements of the
offense that must be found by a jury. This issue is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Garcia 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). Garcia
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.
No. 05-41839
-3-
Garcia argues that the district court erred by ordering him
to cooperate in the collection of a DNA sample as a condition of
his supervised release. Such a 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). Accordingly, this claim is dismissed. See
id. at 1102.
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.