United States v. Arteaga-Brown

* 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this opinion should not be published and is not precedent except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
June 20, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40212
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALLAN SAMUEL ARTEAGA-BROWN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-957-1
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Allan Samuel Arteaga-Brown appeals his guilty-plea
conviction and sentence for being an alien unlawfully found in
the United States following deportation after having been
convicted of an aggravated felony. Arteaga-Brown argues 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 not ripe for review on direct appeal. See United
States v. Riascos-Cuenu, 428 F.3d 1100, 1101-02 (5th Cir. 2005),

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No. 05-40212
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petition for cert. filed (Jan. 9, 2006) (No. 05-8662). The claim
is dismissed. See id. at 1102.
Arteaga-Brown also challenges the constitutionality of 8
U.S.C. § 1326(b)’s treatment of prior felony and aggravated
felony convictions as sentencing factors rather than elements of
the offense that must be found by a jury in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000). Arteaga-Brown’s constitutional
challenge is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Arteaga-Brown contends that
Almendarez-Torres was incorrectly decided and that a majority of
the Supreme Court would overrule Almendarez-Torres in light of
Apprendi, 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). Arteaga-Brown 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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