United States v. Benegas-Herrera

* 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this opinion should not be published and is not precedent except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. 05-40269
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSUE VIRGILIO BENEGAS-HERRERA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-845-ALL
--------------------
Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Josue Virgilio Benegas-Herrera pleaded guilty to being found
in the United States unlawfully after deportation and was
sentenced to 46 months of imprisonment and a three-year term of
supervised release. Benegas-Herrera 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

-- 1 of 2 --

No. 05-40269
-2-
for cert. filed (Jan. 9, 2006) (No. 05-8662). The claim is
dismissed. See id. at 1102.
Benegas-Herrera’s constitutional challenge to 8 U.S.C.
§ 1326(b) is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Benegas-Herrera 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). Benegas-
Herrera 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.

-- 2 of 2 --