USA v. Sierra-Garcia, No. 05-40335 (5th Cir. 2006)
Annotate this Case
Download PDF
United States Court of Appeals Fifth Circuit FILED IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT January 4, 2006 _____________________ Charles R. Fulbruge III Clerk No. 05-40335 ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GILBERTO SIERRA-GARCIA, Defendant-Appellant. __________________ On Appeal from the United States District Court For the Southern District of Texas __________________ Before JOLLY, DAVIS, and OWEN, Circuit Judges. PER CURIAM:1 Gilberto Sierra-Garcia appeals his sentences following two guilty pleas and convictions for illegal reentry after deportation in violation of 8 U.S.C. § 1326 and fraudulently securing social security payments in violation of 42 U.S.C. § 408(a)(4). In a motion to dismiss, the Government argues that Sierra-Garcia s appeal is precluded by an appellate waiver provision in his plea agreement, and alternatively 1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1 that the arguments are meritless and we should summarily affirm the sentences. Sierra-Garcia was separate indictments. charged with the crimes in two He was first charged with and pleaded guilty to the illegal reentry in case number B-04-281. guilty plea was not pursuant to any plea agreement. His Sierra- Garcia was then later charged with social security fraud in case number B-04-390-S1. His guilty plea in that case was pursuant to a plea agreement containing an appellate waiver provision. The cases were then consolidated for sentencing. The district court sentenced Sierra-Garcia to sentences of 30 months in prison on both cases to run concurrently, followed by a three-year supervised release term on both cases to run concurrently. One condition of Sierra-Garcia s supervised release is that he cooperate with the collection of a DNA sample pursuant to 18 U.S.C. 3583(d). For the first time on appeal, Sierra-Garcia raises two challenges to his sentences. With respect to his illegal reentry sentence, he argues that the sentencing enhancement provisions of 8 U.S.C. § 1326(b) are unconstitutional. Because Sierra-Garcia s guilty plea on the illegal reentry charge was entered without a plea agreement, there is no applicable appellate waiver 2 provision. Although the Government argues that consolidation of the two cases should expand the scope convictions and of the appellate sentences, the waiver plea to cover agreement both plainly applies only to case number B-04-390-S1, the social security fraud case. As Sierra-Garcia concedes in his brief, however, his first argument is foreclosed by AlmendarezTorres v. United States, 523 U.S. 224 (1998). With respect to both sentences, Sierra-Garcia argues that the supervised release condition that he cooperate in collection of a DNA sample violates the Ex Post Facto Clause or general principles against retroactivity because his offense and guilty plea preceded the amended DNA Act, which authorized the condition. The Government argues that this argument is subject to the appellate waiver at least for purposes fraud. of Sierra-Garcia s Sierra-Garcia functionally equivalent sentence argues to a for that sentence social the security condition which exceeds is the statutory maximum, an argument that is not waived by the plea agreement. Whether Sierra-Garcia has waived this argument or not, however, this court is without jurisdiction to entertain his argument. This court recently rejected an identical challenge, finding that imposition of DNA sample collection 3 was not a part of appellants sentence, but is rather a prison condition that must be challenged through a separate civil action after exhaustion of administrative remedies. See United States v. Riascos-Cuenu, --- F.3d ---, 2005 WL 2660032, *1-2 (5th Cir. Oct. 19, 2005) (quoting United States v. Carmichael, 343 F.3d 756, 761 (5th Cir. 2003), cert. denied, 540 U.S. 1136 (2004)). We therefore DISMISS the appeal of the order requiring Defendant s cooperation in the collection of a DNA sample for lack of jurisdiction, and we AFFIRM the remainder of the sentence imposed district court. JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART. 4 by the
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
