United States v. Rodriguez-Ruiz

* 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this opinion should not be published and is not precedent except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. 05-40698
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMON RODRIGUEZ-RUIZ, also known as Jose Ramon Rodriguez-Ruiz,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-905
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Before GARZA, DENNIS, and PRADO, Circuit Judges
PER CURIAM:*
Ramon Rodriguez-Ruiz (Rodriguez) appeals his conviction and
sentence following his plea of guilty to illegal reentry after
deportation. Rodriguez was sentenced to 46 months of
imprisonment and three years of supervised release. Rodriguez
asserts that the district court erred in ordering, as a condition
of supervised release, that he cooperate with the probation
officer in the collection of DNA. His claim is not ripe for
judicial review in light of our holding in United States v.

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No. 05-40698
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Riascos-Cuenu, 428 F.3d 1100, 1101-02 (5th Cir. 2005), petition
for cert. filed (Jan. 9, 2006) (No. 05-8662). Accordingly, we
dismiss this portion of the appeal for lack of jurisdiction.
Rodriguez also asserts that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional.
Rodriguez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Rodriguez 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). Rodriguez 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.
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.

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