                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 13, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-40384
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

WALTER MARCELINO DE HOYOS,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                   USDC No. 5:04-CR-1702-ALL
                      --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Walter Marcelino De Hoyos appeals his 28-month sentence

following a guilty plea to possession with intent to distribute

less than 50 kilograms of marijuana.   De Hoyos argues that his

sentence under advisory Sentencing Guidelines pursuant to United

States v. Booker, 543 U.S. 220 (2005), violates principles of due

process and the Ex Post Facto Clause; that the district court

plainly erred by failing to give him adequate notice that it was

considering an upward departure at sentencing; that his sentence,

a four-month upward deviation from the Sentencing Guidelines, is

     *
       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this opinion should not be published and is not precedent except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. 05-40384
                                 -2-

unreasonable because the district court considered an

impermissible sentencing factor, i.e., unadjudicated arrests; and

that the district court erred by ordering him to cooperate in the

collection of a DNA sample as a condition of his supervised

release.

     As De Hoyos did not object to the application of advisory

Sentencing Guidelines in the district court, we review for plain

error.   United States v. Olano, 507 U.S. 725, 734 (1993).    The

retroactive application of the remedial opinion in Booker to

determine a post-Booker sentence does not violate ex post facto

and due process principles.    United States v. Austin, 432 F.3d

598, 599 (5th Cir. 2005).   Thus, no error occurred, plain or

otherwise.   Id.; Olano, 507 U.S. at 732.   De Hoyos has likewise

failed to show that the district court plainly erred by failing

to provide adequate notice that it was considering an upward

departure.   United States v. Jones, 444 F.3d 430, 443 (5th Cir.

2006).

     The sentence imposed by the district court is a minimal

increase from the properly calculated applicable Guideline range.

In light of the court’s stated focus on rehabilitation and

deterrence, we conclude that his sentence was reasonable.     United

States v. Smith, 440 F.3d 704, 710 (5th Cir. 2006).

     De Hoyos’s claim regarding DNA collection 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
                            No. 05-40384
                                 -3-

(Jan. 9, 2006) (No. 05-8662).   Accordingly, we dismiss this claim

for lack of jurisdiction.   Id. at 1102.

     AFFIRMED IN PART; DISMISSED IN PART FOR LACK OF

JURISDICTION.
