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this opinion should not be published and is not precedent except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

August 28, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-41681

Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SANTIAGO ENCISO-HERNANDEZ,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:04-CR-105-1

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

Before DAVIS, SMITH, and WIENER, Circuit Judges. 

PER CURIAM:*

Santiago Enciso-Hernandez appeals his guilty-plea conviction

and sentence for being an alien unlawfully found in the United

States following deportation after having been convicted of an

aggravated felony. Enciso-Hernandez argues that the district

court erred by ordering him to cooperate in the collection of a

DNA sample as a condition of supervised release. This claim is

not ripe for review on direct appeal. See United States v.

Riascos-Cuenu, 428 F.3d 1100, 1101-02 (5th Cir. 2005), petition
No. 04-41681

-2-

for cert. filed (Jan. 9, 2006) (No. 05-8662). The claim is

dismissed. See id. at 1102. 

Enciso-Hernandez argues for the first time on appeal that,

in light of United States v. Booker, 543 U.S. 220 (2005), the

district court plainly erred by sentencing him pursuant to a

mandatory sentencing guidelines regime, a so-called Fanfan error.

Although he concedes that the issue is foreclosed, he seeks to

preserve for further review whether this court should review his

Fanfan claim de novo because the remedial provisions of Booker

were “unforeseeable and entirely novel” at the time he was

sentenced. Enciso-Hernandez also seeks to preserve for further

review whether this court’s requirement in United States v.

Bringier, 405 F.3d 310 (5th Cir.), cert. denied, 126 S. Ct. 264

(2005), that the defendant prove that the error affected his

substantial rights, is inconsistent with the reasonable

probability standard set forth in United States v. Dominguez

Benitez, 542 U.S. 74 (2004). 

Where Fanfan error is raised for the first time on appeal,

review is for plain error. United States v. Valenzuela-Quevedo,

407 F.3d 728, 732-33 (5th Cir.), cert. denied, 126 S. Ct. 267

(2005). The mandatory application of the Guidelines after Booker

is an error that is plain. Id. at 733. Enciso-Hernandez has not

shown that his substantial rights have been affected, however,

because the sentencing transcript is silent with regard to
No. 04-41681

-3-

whether the district court would have imposed a different

sentence had the guidelines been advisory. See id.

Enciso-Hernandez also challenges the constitutionality of

8 U.S.C. § 1326(b)’s treatment of prior felony and aggravated

felony convictions as sentencing factors rather than elements of 

the offense that must be found by a jury in light of Apprendi v.

New Jersey, 530 U.S. 466 (2000). Enciso-Hernandez’s

constitutional challenge is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998). Although

Enciso-Hernandez contends that Almendarez-Torres 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. Garza-Lopez, 410 F.3d 268,

276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). 

Enciso-Hernandez 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.