United States v. Patino-Cruz

* 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this opinion should not be published and is not precedent except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. 05-40674
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HORACIO PATINO-CRUZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-584-ALL
--------------------
Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Horacio Patino-Cruz (Patino) appeals his guilty-plea
conviction and sentence for being found unlawfully in the United
States after having been deported. The district court sentenced
Patino to 77 months of imprisonment and two years of supervised
release.
On appeal, Patino argues that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). The Government argues that the waiver provision in

-- 1 of 2 --

No. 05-40674
-2-
Patino’s plea agreement precludes his attack on the
constitutionality of § 1326(b). We assume, arguendo only, that
the waiver does not bar the instant appeal.
Patino’s challenge to the constitutionality of § 1326(b) is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Patino 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).
Patino 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.
Patino also argues that the district court erred in ordering
him to cooperate in the collection of a DNA sample as a condition
of supervised release and, therefore, that this condition should
be vacated. The Government does not seek enforcement of the
waiver as to this issue. As Patino concedes, however, this claim
is not ripe for review. See United States v. Riascos-Cuenu, 428
F.3d 1100, 1102 (5th Cir. 2005), petition for cert. filed
(Jan. 9, 2006) (No. 05-8662). Accordingly, this portion of the
appeal is dismissed for lack of jurisdiction.
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.

-- 2 of 2 --