United States v. Vargas-Alarcon
186 F. App'x 457
June 21, 2006 · Docket 05-40420
Headnotes
Generated summaries- Headnote 1
The Fifth Circuit held that Vargas‑Alarcon’s challenge to 8 U.S.C. § 1326(b) was foreclosed because Almendarez‑Torres declares such prior‑conviction factors sentencing, not elements, and therefore not subject to a jury trial requirement.
- Headnote 2
The court reiterated that Almendarez‑Torres is binding authority and rejected arguments that it has been implicitly overruled by Apprendi, citing Garza‑Lopez as support for following Supreme Court precedent.
- Headnote 3
The court dismissed Vargas‑Alarcon’s DNA‑sample challenge for lack of jurisdiction, finding the issue non‑ripe under the ripeness doctrine as articulated in United States v. Riascos‑Cuenu.
- Headnote 4
The Fifth Circuit, following the Supreme Court’s decision in Almendarez‑Torres, held that Vargas‑Alarcon’s Sixth‑Amendment challenge to the penalty provision of 8 U.S.C. § 1326(b) could not proceed because the statute treats the prior conviction solely as a sentencing factor, not as an element requiring a jury’s determination.
- Headnote 5
The Fifth Circuit dismissed Vargas‑Alarcon’s challenge to the DNA‑collection supervised‑release condition for lack of jurisdiction, citing Riascos‑Cuenu and the constitutional ripeness doctrine, which requires a concrete, particularized injury before a court may review the condition.
- Headnote 6
Vargas‑Alarcon argued that § 1326(b) violated his Sixth‑Amendment right to a jury trial. The Fifth Circuit held the claim foreclosed because Almendarez‑Torres controls the analysis of prior‑conviction sentencing factors.
- Headnote 7
The court rejected Vargas‑Alarcon’s contention that Almendarez‑Torres should be overruled by Apprendi, emphasizing that the Fifth Circuit must follow Supreme Court precedent unless it is expressly overturned, as reiterated in Garza‑Lopez.
- Headnote 8
Vargas‑Alarcon challenged the DNA‑sample condition as unconstitutional. The Fifth Circuit dismissed the claim for lack of jurisdiction because the condition had not yet been enforced, applying the ripeness doctrine as articulated in Riascos‑Cuenu.
- Headnote 9
Vargas‑Alarcon argued that § 1326(b) required a jury trial because it treated his earlier illegal‑entry conviction as a sentencing factor. The Fifth Circuit held the challenge is foreclosed because Almendarez‑Torres holds such prior convictions are not elements.
- Headnote 10
The court rejected Vargas‑Alarcon’s contention that Almendarez‑Torres was wrongly decided or likely overruled by Apprendi, emphasizing that the Supreme Court decision controls the circuit until expressly overturned.
- Headnote 11
Vargas‑Alarcon appealed the DNA‑collection condition, but the Fifth Circuit dismissed the claim for lack of jurisdiction, applying the ripeness doctrine as articulated in United States v. Riascos‑Cuenu.
- Headnote 12
Vargas‑Alarcon challenged the penalty provision of 8 U.S.C. § 1326(b). The court held the challenge is foreclosed because the prior conviction is merely a sentencing factor, not an element of the crime.
- Headnote 13
The court affirmed that Almendarez‑Torres remains controlling precedent and rejected arguments that it was wrongly decided or likely to be overruled, thereby barring Vargas‑Alarcon’s Sixth‑Amendment claim.
- Headnote 14
Vargas‑Alarcon was ordered to cooperate with DNA collection as a supervised‑release condition. The court dismissed his challenge as non‑ripe because the condition had not yet been enforced.
- Headnote 15
The district court’s DNA‑collection condition was appealed, but the Fifth Circuit held it was not ripe and therefore outside the appellate court’s jurisdiction, resulting in dismissal of the claim.
Opinion
Luis Leonel Vargas-Alarcon pleaded guilty without a plea agreement to being an alien unlawfully found in the United States after deportation and was sentenced to 57 months of imprisonment and three years of supervised release. As a condition of supervised release, Vargas-Alarcon was ordered to cooperate in the collection of a DNA sample as directed by his probation officer.
Vargas-Alarcon argues that the district court erred in ordering him to cooperate in the collection of a DNA sample as a 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).
Vargas-Alareon’s constitutional challenge to 8 U.S.C. § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although VargasAlarcon 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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, — U.S.-, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Vargas-Alarcon 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.
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.