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this opinion should not be published and is not precedent except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

January 24, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

THE FIFTH CIRCUIT

No. 05-40550

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JORGE GUADALUPE RUIZ-CARMONA, 

also known as Javier Perez,

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.

PER CURIAM:*

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
2

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 supervisedrelease 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. RiascosCuenu, 428 F.3d 1100, vacated on other grounds, --– S. Ct. -––,

2006 WL 123289 (U.S. Dec. 11, 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-Cuenu, vacated the holding, and remanded for consideration

in the light of Lopez v. Gonzales, 549 U.S. -–– (2006).
3

Riascos-Cuenu v. United States, --- S. Ct. ---, 2006 WL 123289, *1

(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 (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 (2000). This

challenge is foreclosed by Almendarez-Torres v. United States, 523

U.S. 224, 235 (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, 126 S. Ct.

298 (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
4