* Pursuant to 5TH C IR . 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this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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 October 24, 2006 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-40142 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus DAVID TIBURCIO-AVILA, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-736-1

-------------------- Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM: * David Tiburcio-Avila appeals the sentence imposed following his guilty-plea conviction for being found illegally in the United States after deportation. Tiburcio-Avila was sentenced to 57 months in prison and three years of supervised release. Tiburcio-Avila contends that the district court abused its discretion by imposing as a condition of supervised release that he cooperate in the collection of a DNA sample. Because this issue is not ripe for review, this court does not haveNo. 05-40142 -2- jurisdiction, and the appeal must be dismissed in part. 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). Tiburcio-Avila correctly concedes that the ripeness issue is foreclosed by circuit precedent but raises his argument to preserve it for further review. Tiburcio-Avila argues that the district court plainly erred in imposing his sentence under the then mandatory United States Sentencing Guidelines, which were subsequently held unconstitutional in United States v. Booker , 543 U.S. 220 (2005). Because he did not raise this issue in the district court, review is limited to plain error. See United States v. Harris , 104 F.3d 1465, 1471-72 (5th Cir. 1997). Under the plain-error standard of review, “reversal is not required unless there is (1) an error; (2) that is clear or plain; (3) that affects the defendant’s substantial rights; and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Vasquez , 216 F.3d 456, 459 (5th Cir. 2000). The imposition of Tiburcio-Avila’s sentence under the mandatory Guidelines was error that was plain. See United States v. Martinez-Lugo , 411 F.3d 597, 600 (5th Cir.), cert. denied , 126 S. Ct. 464 (2005). However, Tiburcio-Avila has not shown that the error affected his substantial rights as he has not shown that the district court would likely have imposed a lesser sentence under an advisory guidelines sentencing scheme. See id.No. 05-40142 -3- at 600-01. Therefore, he has not shown that the district court’s imposition of his sentence under the mandatory Guidelines was reversible plain error. See id. Tiburcio-Avila argues that his conviction should be vacated because the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional. His constitutional challenge to § 1326(b) is foreclosed by Almendarez-Torres v. United States , 523 U.S. 224, 235 (1998). Although Tiburcio-Avila 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). Tiburcio-Avila 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.