United States v. Rodriguez-Moctezuma

* 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this opinion should not be published and is not precedent except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. 05-40868
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOEL RODRIGUEZ-MOCTEZUMA,
aka Carlos Lopez-Moctezuma,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-851-1
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Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Joel Rodriguez-Moctezuma pleaded guilty to being found
unlawfully in the United States after deportation and was
sentenced to 72 months of imprisonment and three years of
supervised release. As a condition of supervised release,
Rodriguez-Moctezuma was ordered to cooperate in the collection
of a DNA sample as directed by his probation officer.
Rodriguez-Moctezuma argues that the district court erred in
ordering him to cooperate in the collection of a DNA sample as a

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No. 05-40868
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condition of supervised release. 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).
Rodriguez-Moctezuma’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 Rodriguez-Moctezuma 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). Rodriguez-Moctezuma 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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