United States v. Aguilar-Delgado

* 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this opinion should not be published and is not precedent except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. 05-40644
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAFAEL AGUILAR-DELGADO,
also known as Lieonel Villagomez,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-818-ALL
--------------------
Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*
Rafael Aguilar-Delgado (“Aguilar”) challenges the 46-month
sentence imposed on resentencing for his guilty-plea conviction
of illegal reentry, in violation of 8 U.S.C. § 1326. He argues
that the district court erred in imposing as a special condition
of supervised release that he cooperate in the collection of a
DNA sample. This claim is not ripe for review. See United
States v. Riascos-Cuenu, ___ F.3d ___, No. 05-20037, 2005 WL
2660032 at *1-2 (5th Cir. Oct. 18, 2005). Accordingly, this

-- 1 of 2 --

No. 05-40644
-2-
portion of the appeal is dismissed for lack of jurisdiction.
However, the case is remanded for the limited purpose of
conforming the judgment to the oral pronouncement that, as a
special condition of supervised release, Aguilar cooperate in the
collection of a DNA sample.
Aguilar also argues that the sentencing provisions of 8
U.S.C. § 1326(b) are unconstitutional. This claim was decided
adversely to him in his original appeal, and the previous
determinations of this court stand as the law of the case. See
United States v. Becerra, 155 F.3d 740, 752-53 (5th Cir. 1998).
AFFIRMED; DISMISSED IN PART FOR LACK OF JURISDICTION;
LIMITED REMAND TO CORRECT THE JUDGMENT.

-- 2 of 2 --