USA v. Garcia-Garcia, No. 05-41839 (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 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. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 1:05-CR-657 -------------------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). argument has been rejected by this court. Garcia s 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 -2443 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 -3Garcia 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. direct appeal. Such a 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). Accordingly, this claim is dismissed. id. at 1102. JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART. See
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