USA v. Gonzalez-Monguia, No. 05-40234 (5th Cir. 2006)
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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 20, 2006 Charles R. Fulbruge III Clerk No. 05-40234 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JUAN ANTONIO GONZALEZ-MONGUIA, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-1995-ALL -------------------Before STEWART, DENNIS, and OWEN, Circuit Judges. PER CURIAM:* Juan Antonio Gonzalez-Monguia (Gonzalez) pleaded guilty to being found in the United States unlawfully after deportation. See 8 U.S.C. § 1326. He was sentenced to 68 months of imprisonment, to be served consecutively to a six-month term of imprisonment imposed upon revocation of supervised release on an alien-smuggling offense. The district court also imposed a three-year term of supervised release. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40234 -2Gonzalez s constitutional challenge to § 1326 is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Gonzalez 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). Gonzalez 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. Gonzalez argues that the district court erred by ordering him to cooperate in the collection of a DNA sample as a condition of supervised release. direct appeal. This claim is not ripe for review on 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). The claim is dismissed. See id. at 1102. JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.
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