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this opinion should not be published and is not precedent except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

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 have
No. 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.