USA v. Ornelas-Araiza, No. 06-40631 (5th Cir. 2007)
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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 February 14, 2007 Charles R. Fulbruge III Clerk No. 06-40631 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MARIANO ORNELAS-ARAIZA, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 1:05-CR-852-ALL -------------------Before BARKSDALE, GARZA, and CLEMENT, Circuit Judges. PER CURIAM:* Mariano Ornelas-Araiza (Ornelas) appeals his guilty-plea conviction and sentence for being an alien found unlawfully in the United States after deportation and after having been convicted of an aggravated felony. He was sentenced to 77 months of imprisonment and three years of supervised release. Ornelas argues that the felony and aggravated felony provisions of 8 U.S.C. ยง 1326(b)(1) and (2) are unconstitutional. Ornelas s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-40631 -2Although Ornelas 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). Ornelas 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. Ornelas also argues that the district court erred in ordering him to cooperate in the collection of a DNA sample as a condition of supervised release and, therefore, that this condition should be vacated. not ripe for review. As Ornelas concedes, this claim is See 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. JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.
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