USA vs. Vargas-Garcia, (5th Cir. 2006)

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United States Court of Appeals

Fifth Circuit

FILED

IN THE UNITED STATES COURT OF APPEALS

February 23, 2006

FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III

Clerk

No. 05-40360

Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAIMUNDO VARGAS-GARCIA,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:04-CR-729-ALL

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:* Raimundo Vargas-Garcia (Vargas) appeals from his conviction of illegal reentry following deportation, pursuant to 8 U.S.C. § 1326. Vargas contends for the first time on appeal that the district court erred in ordering him to cooperate in the collection of a DNA sample as a condition of supervised release and that this condition should therefore be vacated. This claim is dismissed for lack of jurisdiction because it is not ripe for * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. review. See United States v. Riascos-Cuenu, 428 F.3d 1000, 1102 (5th Cir. 2005), petition for cert. filed (Jan. 9, 2005) (No. 058662).

Vargas next argues, for the first time on appeal, that his previous state offense of burglary of a habitation did not constitute a "crime of violence" for purposes of U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). He correctly concedes that his argument is foreclosed by United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005), petition for cert. filed (Dec. 15, 2005)(No. 05-8542), but he raises the argument to preserve it for further review. He also argues that Garcia-Mendez was incorrectly decided. We do not disturb our holding in GarciaMendez. See United States v. Taylor, 933 F.2d 307, 313 (5th Cir. 1991) (one panel of this court may not overrule another panel).

Vargas finally challenges the constitutionality of 8 U.S.C. § 1326(b). His constitutional challenge is foreclosed by Almendarez-Torres v. United States,523 U.S. 224, 235 (1998).

Although Vargas 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). Vargas 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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