                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                       F I L E D
                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                          June 2, 2006

                          _______________________                  Charles R. Fulbruge III
                                                                           Clerk
                                No. 05-40446
                              Summary Calendar
                          _______________________

                        UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                    versus

                       LUCIO BENITO LARA-MAGDALENA,

                                                        Defendant-Appellant.

_________________________________________________________________

          Appeal from the United States District Court
               for the Southern District of Texas
                       No. 1:04-CR-820-ALL
________________________________________________________________

Before JONES, Chief Judge, and DeMOSS and STEWART, Circuit Judges.

PER CURIAM:*

            Lucio Benito Lara-Magdalena (“Lara”) appeals his guilty-

plea conviction for being an alien unlawfully found in the United

States after deportation, having been previously convicted of a

felony, in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(1).

            Lara argues, inter alia, that the district court abused

its discretion when it ordered as a condition of supervised release

that he cooperate in the collection of a DNA sample from him.                   In

United States v. Riascos-Cuenu, 428 F.3d 1100 (5th Cir. 2005), this



      *
         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should not be published and is not precedent except under the limited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.
court held that a similar claim brought for the first time on

appeal by a federal prisoner was not ripe for review, as “it

remains conjecture whether [the prisoner’s] DNA sample will be

taken while he is on supervised release.”              Id. at 1102.    Lara’s

appeal is factually distinguishable from Riascos-Cuenu, in that

Lara is now on supervised release, but his appeal is nevertheless

deficient.     First, if Lara provided a DNA sample to the Bureau of

Prisons while incarcerated, his claim is moot, as he will not be

asked to provide an additional DNA sample during his period of

supervised release. See United States v. Carmichael, 343 F.3d 756,

761 (5th Cir. 2003).      Second, as an alien having been convicted of

a felony, Lara would have been deported upon his release from

prison in January 2006.        Even assuming arguendo that Lara did not

provide   a    DNA   sample    during    his   incarceration,   it    is   pure

conjecture to assert that an individual no longer within the

jurisdiction of the United States will be made to provide a DNA

sample during his period of supervised release.             Thus, regardless

of whether Lara has provided a DNA sample to the Bureau of Prisons,

this court lacks jurisdiction over his claim.

              Lara also asserts that the “felony” and “aggravated

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

Rodriguez's constitutional challenge is foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224, 235, 118 S. Ct. 1219, 1226

(1998).   Although      Lara    contends       that   Almendarez-Torres     was

incorrectly decided and that a majority of the Supreme Court would

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now overrule the case, 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. 2005). Lara

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.




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