United States v. Oro-Hernandez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 17, 2007
Charles R. Fulbruge III
Clerk
No. 06-40576
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JACOBO OSWALDO ORO-HERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-1072--ALL
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Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
Jacobo Oswaldo Oro-Hernandez (Oro) appeals his guilty-plea
conviction for illegal reentry, in violation of 8 U.S.C. § 1326,
and resulting 28-month sentence. Oro’s constitutional challenge
to § 1326(b) is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Oro 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.
*
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this opinion should not be published and is not precedent except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. 06-40576
-2-
See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),
cert. denied, 126 S. Ct. 298 (2005). Oro 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.
Oro next 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. United States v. Carmichael, 343 F.3d 756, 761-62
(5th Cir. 2003). Accordingly, this portion of the appeal is
dismissed for lack of jurisdiction. See id. at 762.
Oro additionally argues that the district court misapplied
the Sentencing Guidelines by characterizing his state felony
conviction for possession of a controlled substance as an
“aggravated felony” for purposes of U.S.S.G. § 2L1.2(b)(1)(C).
Given the Supreme Court’s recent decision in Lopez v. Gonzales,
127 S. Ct. 625 (2006), Oro is correct. See United States v.
Estrada-Mendoza, 475 F.3d 258, 259-61 (5th Cir. 2007). His
conviction is affirmed. His sentence is vacated, and the case is
remanded for resentencing. Oro’s motion to summarily affirm in
part and to vacate in part is denied as moot.
CONVICTION AFFIRMED; APPEAL DISMISSED IN PART; SENTENCE
VACATED AND REMANDED FOR RESENTENCING; MOTION DENIED.