United States v. Barajas-Madrigal

* 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this opinion should not be published and is not precedent except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. 05-20142
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANTIAGO BARAJAS-MADRIGAL, also known as Santiago Barrajas, also
known as Santiago Madrigal Barajas, also known as Santiago M.
Barajas,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-341-ALL
--------------------
Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Santiago Barajas-Madrigal (Barajas) pleaded guilty to
illegal reentry after deportation and was sentenced to 30 months
of imprisonment, three years of supervised release, and a $100
special assessment.
Barajas argues for the first time on appeal that the
district court erred in ordering him to cooperate in the
collection of a DNA sample as a condition of supervised release

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No. 05-20142
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and that this condition should therefore be vacated. This claim
is dismissed for lack of jurisdiction because it 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).
Barajas’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 Barajas 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). Barajas 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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