                                                        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. 05-40332
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JOSE MONDRAGON-MALDONADO,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 1:04-CR-810-1
                      --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Jose Mondragon-Maldonado appeals his conviction and sentence

for unlawful presence in the United States after deportation

following an aggravated felony conviction.      We will not enforce

the appeal waiver in this case because the Government does not

seek to enforce it.   See United States v. Story, 439 F.3d 226,

229-31 (5th Cir. 2006).

     Mondragon-Maldonado argues for the first time on appeal that

the district court abused its discretion when it imposed a


     *
       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this opinion should not be published and is not precedent except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. 05-40332
                                  -2-

condition of supervised release that requires him to cooperate in

the collection of his DNA.    This claim is not ripe for review.

See United States v. Riascos-Cuenu, 428 F.3d 1100, 1100-01 (5th

Cir. 2005), petition for cert. filed (Jan. 9, 2006) (No. 05-

8662).    Therefore, this court lacks jurisdiction to review this

claim, and this portion of the appeal is dismissed.

     Mondragon-Maldonado argues that the “felony” and “aggravated

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

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

(2000).    Mondragon-Maldonado’s constitutional challenge is

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

235 (1998).   Although Mondragon-Maldonado 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).    Mondragon-Maldonado 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.
