Opinion
No. 05-40550 Summary Calendar.
January 24, 2007.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
Marjorie A. Meyers, Federal Public Defender, Philip G. Gallagher, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas (5:04-CR-1767-ALL).
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
On several bases, Jorge Guadalupe Ruiz-Carmona challenges his conviction and sentence, following pleading guilty to being illegally present in this country after having been deported in violation of 8 U.S.C. § 1326.
First, Ruiz claims the district court erred by failing to rule on his downward-departure motion, as required by Federal Rule of Criminal Procedure 32(i)(3)(B). This court lacks jurisdiction to review a refusal to depart downward, unless there is some indication the district court erroneously believed it lacked the authority to do so. United States v. Hernandez, 457 F.3d 416, 424 n. 5 (5th Cir. 2006).
Immediately before sentencing Ruiz, the district court heard Ruiz's arguments supporting his downward-departure motion. Although the court did not explicitly rule on the motion, it implicitly denied it by imposing a sentence within the Guideline range. Because the record does not suggest the district court believed it lacked authority to depart in Ruiz's case, this court lacks jurisdiction to consider this claim. Id.
Ruiz next contends, for the first time on appeal, that the district court abused its discretion by imposing a supervised-release condition requiring him to cooperate in the collection of his DNA. This contention is not ripe for review and is therefore dismissed for lack of jurisdiction. See United States v. Riascos-Cuenu, 428 F.3d 1100, vacated on other grounds, ___ U.S. ___, 127 S.Ct. 827, 166 L.Ed.2d 661 (2006); United States v. Carmichael, 343 F.3d 756, 760-62 (5th Cir. 2003). Ruiz acknowledges this argument is foreclosed, but raises it to preserve it for further review.
As stated, the Supreme Court recently granted certiorari in Riascos-Cuanu, vacated the holding, and remanded for consideration in the light of Lopez v. Gonzales, 549 U.S. ___, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006). Riascos-Cuenu v. United States, ___U.S. ___, ___, 127 S.Ct. 827, 166 L.Ed.2d 661 (2006). Lopez does not concern DNA-collection sentencing; but, even if we have jurisdiction to review Ruiz's claim, our review, in the alternative, would be only for plain error because, as noted, Ruiz failed to raise his objection at sentencing. See FED. R.CRIM.P. 52(b); United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
Under plain-error review, Ruiz must show a clear or obvious error affecting his substantial rights. Id. If he satisfies those criteria, this court may correct the forfeited error only if it "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings". Id. (internal quotation omitted). Ruiz fails to show the district court made a clear or obvious error.
Finally, Ruiz challenges the constitutionality of § 1326(b) in the light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Ruiz maintains Almendarez-Torres was decided incorrectly and that a majority of the Supreme Court would overrule Almendarez-Torres in the light of Apprendi we have repeatedly rejected such arguments. 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). Ruiz concedes his argument is foreclosed by Almendarez-Torres, but raises it to preserve it for further review.
AFFIRMED IN PART; DISMISSED IN PART.