United States v. Caballero-Martinez

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
December 14, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40489
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO TONATIUH CABALLERO-MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-913-ALL
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Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*
Alejandro Tonatiuh Caballero-Martinez (“Caballero”) appeals
his guilty-plea conviction and sentence for importation of more
than 500 grams of cocaine into the United States. For the first
time on appeal, Caballero argues that the district court erred by
requiring him to cooperate in the collection of a DNA sample from
him as a condition of his supervised release. In United States
v. Riascos-Cuenu, __ F.3d __, 2005 WL 2660032 at *1-2 (5th Cir.
Oct. 18, 2005), a similar challenge was held to be not ripe for

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No. 05-40489
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review. Accordingly, this portion of Caballero’s appeal is
dismissed.
Also for the first time on appeal, Caballero asserts that
the federal drug importation statutes, 21 U.S.C. §§ 952 and 960,
are facially unconstitutional under Apprendi v. New Jersey, 530
U.S. 466 (2000). Contrary to the Government’s argument,
Caballero did not waive this issue because neither his plea
agreement nor his unconditional guilty plea waived a facial
challenge to the constitutionality of the statutes under which he
was convicted. See United States v. Knowles, 29 F.3d 947, 952
(5th Cir. 1994) (citing Menna v. New York, 423 U.S. 61, 62-63 n.2
(1975)). Nevertheless, as Caballero concedes, his argument is
foreclosed on its merits by this court’s opinion in United States
v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000).
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART FOR LACK OF
JURISDICTION.

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