United States v. Saravia-Casares

* 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this opinion should not be published and is not precedent except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
April 11, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40655
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN JOSE SARAVIA-CASARES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1997-ALL
--------------------
Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Juan Jose Saravia-Casares (Saravia) pleaded guilty to being
found in the United States unlawfully after deportation and was
sentenced to 36 months of imprisonment and a three-year term of
supervised release.
Saravia’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 Saravia 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

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No. 05-40655
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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). Saravia 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.
Saravia also argues for the first time on appeal that the
district court erred when it imposed a condition of supervised
release that requires him to cooperate in the collection of his
DNA. Saravia’s claim is not ripe for review. 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).
Therefore, this court lacks jurisdiction to review this claim,
and this portion of the appeal is dismissed.
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.

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