United States v. Romero-Montiel

* 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this opinion should not be published and is not precedent except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 CIRCUIT3
No. 05-40463
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO ROMERO-MONTIEL, also known as Roberto Romero,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1726-ALL
--------------------
Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Roberto Romero-Montiel appeals his conviction and sentence
under 8 U.S.C. § 1326 for attempting to illegally re-enter the
United States after having been deported. Romero-Montiel argues
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. Riascos-Cuenu,
428 F.3d 1100, 1102 (5th Cir. 2005), petition for cert. filed

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No. 05-40463
-2-
(Jan. 9, 2006) (No. 05-8662). Accordingly, we dismiss this
portion of the appeal for lack of jurisdiction.
Romero-Montiel also argues that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional.
His challenge is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998). Although Romero-Montiel
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). Romero-Montiel 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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