United States v. Guereca-Tristan

* 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this opinion should not be published and is not precedent except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
February 23, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40414
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ASCENSION GUERECA-TRISTAN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-2021-ALL
--------------------
Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Ascension Guereca-Tristan (Guereca) pleaded guilty to
attempted illegal reentry after deportation and was sentenced to
72 months of imprisonment and three years of supervised release.
He contends for the first time on appeal that the district court
erred by ordering him to cooperate in the collection of a DNA
sample as a condition of supervised release. This claim is
dismissed for lack of jurisdiction because it is not ripe for
review. See United States v. Riascos-Cuenu, 428 F.3d 1100, 1101-

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No. 05-40414
-2-
02 (5th Cir. 2005), petition for cert. filed (Jan. 9, 2006) (No.
05-8662).
Guereca contends that 8 U.S.C. § 1326(b) is unconstitutional
and that this court should vacate his sentence and remand his
case for resentencing to no more than two years in prison under
8 U.S.C. § 1326(a). As he concedes, this contention is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998).
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.

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