                                                       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. 05-40225
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JAVIER MARTINEZ-DIAZ,
                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-809-ALL
                      --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Javier Martinez-Diaz (Martinez) appeals his guilty plea

conviction and sentence for illegally reentering the United

States after having been deported previously following an

aggravated felony conviction.   The Government argues that

Martinez’s appeal is barred by the appellate-waiver provision in

his plea agreement.   We assume, arguendo only, that the waiver

does not bar the instant appeal.

     Martinez argues that the district court erred by ordering

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

     *
       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this opinion should not be published and is not precedent except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. 05-40225
                                 -2-

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 for cert. filed (Jan. 9,

2006) (No. 05-8662).    The claim is dismissed.   See id. at 1102.

     Martinez also challenges the constitutionality of 8 U.S.C.

§ 1326(b).    However, Martinez’s constitutional challenge is

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

235 (1998).    Although Martinez 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).    Martinez 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.
