* 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this opinion should not be published and is not precedent except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

FILED

April 4, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-40739

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HECTOR ORLANDO ESTRADA-BORJAS, also known as Jose Luis 

Marquez,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:04-CR-850-ALL

--------------------

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Hector Orlando Estrada-Borjas appeals his conviction for

unlawful presence in the United States after deportation

following an aggravated felony conviction and his sentence. He

raises three issues in this appeal. 

First, he argues that robbery as defined in California Penal

Code § 211 (§ 211 robbery) is not a crime of violence as defined

in U.S.S.G. § 2L1.2(b)(1) because it is broader than “the generic

contemporary meaning” of robbery, since it can be committed by
No. 05-40739

-2-

inducing the fear that property will be damaged. He also asserts

that § 211 robbery is not a crime of violence under § 2L1.2(b)(1)

because it does not have as an element the use, attempted use, or

threatened use of physical force against a person. 

This court need not resolve whether § 211 robbery is a crime

of violence because the amended information establishes that

Estrada-Borjas’ conviction for first-degree robbery under

California Penal Code §§ 211, 212.5, and 12022(a)(1) qualifies as

an enumerated offense because its elements required proof that

(1) Estrada-Borjas robbed “an inhabited dwelling house . . . or

the inhabited portion of any other building,” § 212.5; and (2) he

or an accomplice was armed with a firearm during the first-degree

robbery. § 12022(a)(1). Estrada-Borjas’ conviction for firstdegree robbery under §§ 211, 212.5, and 12022(a)(1) qualifies as

the enumerated offense of robbery “as that term is understood in

its ordinary, contemporary, [and] common meaning.” United States

v. Izaguirre-Flores, 405 F.3d 270, 275 (5th Cir.), cert. denied,

126 S. Ct. 253 (2005) (brackets in original; internal quotation

marks and citation omitted); accord Taylor v. United States, 495

U.S. 575, 599 (1990). Moreover, Estrada-Borjas’ first-degree

robbery conviction under §§ 211, 212.5, and 12022(a)(1) had as an

element, at least, the threatened use of physical force against

the person of another. See § 2L1.2, comment. (n.1(B)(iii));

United States v. Calderon-Pena, 383 F.3d 254, 257 (5th Cir.
No. 05-40739

-3-

2004). Thus, Estrada-Borjas’ prior first-degree robbery

conviction was a “crime of violence.” 

Second, Estrada-Borjas argues that the “felony” and

“aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and

(b)(2) are unconstitutional in light of Apprendi v. New Jersey,

530 U.S. 466 (2000). Estrada-Borjas’ constitutional challenge is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998). Although Estrada-Borjas contends that AlmendarezTorres was incorrectly decided and that a majority of the Supreme

Court would overrule Almendarez-Torres in light of Apprendi, we

have repeatedly rejected such arguments on the basis that

Almendarez-Torres remains binding. See United States v. GarzaLopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298

(2005). Estrada-Borjas 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.

Finally, Estrada-Borjas argues for the first time on appeal

that the district court abused its discretion when it imposed a

condition of supervised release that requires him to cooperate in

the collection of his DNA. This claim is not ripe for review. 

See United States v. Riascos-Cuenu, 428 F.3d 1100, 1100-01 (5th

Cir. 2005), petition for cert. filed (Jan. 9, 2006) (No. 05-

8662). Therefore, this court lacks jurisdiction to review this

claim, and this portion of the appeal is dismissed.

CONVICTION AND JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.