United States v. Gonzalez-Monguia

* 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this opinion should not be published and is not precedent except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. 05-40234
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN ANTONIO GONZALEZ-MONGUIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1995-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Juan Antonio Gonzalez-Monguia (Gonzalez) pleaded guilty to
being found in the United States unlawfully after deportation.
See 8 U.S.C. § 1326. He was sentenced to 68 months of
imprisonment, to be served consecutively to a six-month term of
imprisonment imposed upon revocation of supervised release on an
alien-smuggling offense. The district court also imposed a
three-year term of supervised release.

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No. 05-40234
-2-
Gonzalez’s constitutional challenge to § 1326 is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Gonzalez 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). Gonzalez 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.
Gonzalez 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), petition for cert. filed (Jan. 9,
2006) (No. 05-8662). The claim is dismissed. See id. at 1102.
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.

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