                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  June 20, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-40674
                         Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

HORACIO PATINO-CRUZ,
                                     Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 7:04-CR-584-ALL
                        --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Horacio Patino-Cruz (Patino) appeals his guilty-plea

conviction and sentence for being found unlawfully in the United

States after having been deported.    The district court sentenced

Patino to 77 months of imprisonment and two years of supervised

release.

     On appeal, Patino argues that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000).    The Government argues that the waiver provision in


     *
       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this opinion should not be published and is not precedent except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.
                            No. 05-40674
                                 -2-

Patino’s plea agreement precludes his attack on the

constitutionality of § 1326(b).   We assume, arguendo only, that

the waiver does not bar the instant appeal.

     Patino’s challenge to the constitutionality of § 1326(b) is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998).   Although Patino 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).

Patino 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.

     Patino also argues that the district court erred in ordering

him to cooperate in the collection of a DNA sample as a condition

of supervised release and, therefore, that this condition should

be vacated.   The Government does not seek enforcement of the

waiver as to this issue.   As Patino concedes, however, this claim

is not ripe for review.    See United States v. Riascos-Cuenu, 428

F.3d 1100, 1102 (5th Cir. 2005), petition for cert. filed

(Jan. 9, 2006) (No. 05-8662).   Accordingly, this portion of the

appeal is dismissed for lack of jurisdiction.

     JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.
