                                                    United States Court of Appeals
                                                             Fifth Circuit

                                                          FILED
           IN THE UNITED STATES COURT OF APPEALS      January 4, 2006
                   FOR THE FIFTH CIRCUIT
                                                   Charles R. Fulbruge III
                    _____________________                  Clerk
                        No. 05-40335
                    ____________________

                  UNITED STATES OF AMERICA,

                                   Plaintiff-Appellee,

                             v.

                   GILBERTO SIERRA-GARCIA,

                                   Defendant-Appellant.

                     __________________

      On Appeal from the United States District Court
             For the Southern District of Texas
                     __________________

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:1

     Gilberto Sierra-Garcia appeals his sentences following

two guilty pleas and convictions for illegal reentry after

deportation in violation of 8 U.S.C. § 1326 and fraudulently

securing social security payments in violation of 42 U.S.C.

§ 408(a)(4).   In a motion to dismiss, the Government argues

that Sierra-Garcia’s appeal is precluded by an appellate

waiver provision in his plea agreement, and alternatively


1
  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this opinion should not be published and is not precedent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.


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that the arguments are meritless and we should summarily

affirm the sentences.

      Sierra-Garcia     was      charged     with    the    crimes    in   two

separate indictments.       He was first charged with and pleaded

guilty to the illegal reentry in case number B-04-281.                     His

guilty plea was not pursuant to any plea agreement.                   Sierra-

Garcia was then later charged with social security fraud in

case number B-04-390-S1.          His guilty plea in that case was

pursuant to a plea agreement containing an appellate waiver

provision.    The cases were then consolidated for sentencing.

The district court sentenced Sierra-Garcia to sentences of

30   months   in   prison   on    both     cases    to    run   concurrently,

followed by a three-year supervised release term on both

cases to run concurrently.            One condition of Sierra-Garcia’s

supervised release is that he cooperate with the collection

of a DNA sample pursuant to 18 U.S.C. 3583(d).

      For the first time on appeal, Sierra-Garcia raises two

challenges to his sentences.               With respect to his illegal

reentry sentence, he argues that the sentencing enhancement

provisions    of   8   U.S.C.     §    1326(b)      are   unconstitutional.

Because Sierra-Garcia’s guilty plea on the illegal reentry

charge was entered without a plea agreement, there is no

applicable     appellate      waiver       provision.           Although   the



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Government argues that consolidation of the two cases should

expand the       scope   of   the    appellate       waiver      to    cover     both

convictions      and     sentences,         the   plea     agreement          plainly

applies only to case number B-04-390-S1, the social security

fraud    case.      As    Sierra-Garcia           concedes      in     his    brief,

however, his first argument is foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224 (1998).

      With respect to both sentences, Sierra-Garcia argues

that the supervised release condition that he cooperate in

collection of a DNA sample violates the Ex Post Facto Clause

or   general     principles       against     retroactivity           because    his

offense and guilty plea preceded the amended DNA Act, which

authorized the condition.              The Government argues that this

argument is subject to the appellate waiver at least for

purposes    of    Sierra-Garcia’s       sentence         for    social       security

fraud.         Sierra-Garcia        argues        that    the     condition       is

functionally      equivalent      to    a    sentence     which       exceeds    the

statutory maximum, an argument that is not waived by the

plea agreement.

      Whether Sierra-Garcia has waived this argument or not,

however, this court is without jurisdiction to entertain his

argument.        This     court     recently       rejected       an     identical

challenge, finding that imposition of DNA sample collection



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was “not a part of appellants’ sentence, but is rather a

prison condition that must be challenged through a separate

civil action after exhaustion of administrative remedies.”

See United States v. Riascos-Cuenu, --- F.3d ---, 2005 WL

2660032,      *1-2   (5th   Cir.   Oct.     19,   2005)   (quoting   United

States v. Carmichael, 343 F.3d 756, 761 (5th Cir. 2003),

cert. denied, 540 U.S. 1136 (2004)).                We therefore DISMISS

the appeal of the order requiring Defendant’s cooperation in

the collection of a DNA sample for lack of jurisdiction, and

we   AFFIRM    the   remainder     of   the   sentence    imposed    by   the

district court.

      JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.




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