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

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 05-20034
                          Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JUAN GONZALEZ-RUIZ,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 4:03-CR-475-ALL
                      --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Juan Gonzalez-Ruiz (Gonzalez) appeals his conviction and

sentence for illegal reentry following deportation.      Gonzalez

argued that the district court committed reversible error under

United States v. Booker, 543 U.S. 220 (2005), by sentencing him

pursuant to a mandatory application of the Sentencing Guidelines.

The Government concedes that Gonzalez has preserved this issue

for appeal.    The Government, however, has not shown beyond a

reasonable doubt that the error was harmless.    See United States


     *
       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this opinion should not be published and is not precedent except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. 05-20034
                                -2-

v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005).   Accordingly,

Gonzalez’s sentence is vacated, and this case is remanded for

resentencing.

     Gonzalez also argues that the district court erred in

ordering, as a condition of supervised release, that he cooperate

with collection of a DNA sample.   Gonzalez acknowledges that this

court determined this issue is not ripe for review in United

States v. Riascos-Cuenu, 428 F.3d 110, 1102 (5th Cir. 2005),

petition for cert. filed, (Jan. 9, 2006) (No. 05-8662), but

raises it to preserve it for further review.   Accordingly, this

issue is dismissed for lack of jurisdiction.

     Gonzalez’s constitutional challenge to 8 U.S.C. § 1326(b) is

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

235 (1998).   Although Gonzalez 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).

Gonzalez 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.

     CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING; APPEAL DISMISSED IN PART.
