United States v. Resendiz-Rios

* 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that this opinion should not be published and is not precedent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
May 18, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40157
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GABRIEL RESENDIZ-RIOS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-782-ALL
--------------------
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Gabriel Resendiz-Rios (Resendiz) appeals the sentence
imposed following his guilty-plea conviction of unlawful entering
the United States after having been deported previously following
an aggravated felony conviction. Resendiz challenges the
constitutionality of the felony and aggravated felony provisions
of 8 U.S.C. § 1326(b) and the district court’s order that he

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No. 05-40157
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cooperate with the probation officer in the collection of DNA as
a condition of supervised release.
Although, in a written plea agreement, Resendiz waived the
right to appeal his sentence except for upward departures and a
sentence exceeding the statutory maximum, the Government does not
seek enforcement of the waiver. Accordingly, the waiver does not
bar this appeal. See United States v. Story, 439 F.3d 226, 230-
31 (5th Cir. 2006).
Resendiz’s constitutional challenge to § 1326(b) is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Resendiz 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). Resendiz 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.
Resendiz also 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

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No. 05-40157
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(Jan. 9, 2006) (No. 05-8662). The claim is dismissed. See id.
at 1102.
JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.

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