                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 23, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-40444
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE RENE GARCIA-HERNANDEZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-2188-ALL
                       --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Jose Rene Garcia-Hernandez (Garcia) pleaded guilty to

illegal reentry after deportation and was sentenced to 70 months

of imprisonment and a three-year term of supervised release.

     Garcia argues for the first time on appeal that the district

court erred in ordering him to cooperate in the collection of a

DNA sample as a condition of supervised release and that this

condition should therefore be vacated.   This claim is dismissed

for lack of jurisdiction because it is not ripe for review.        See



     *
       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this opinion should not be published and is not precedent except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. 05-40444
                                 -2-

United States v. Riascos-Cuenu, 428 F.3d 1100, 1102 (5th Cir.

2005), petition for cert. filed (Jan. 9, 2006) (No. 05-8662).

     Also for the first time on appeal, Garcia challenges the

constitutionality of 8 U.S.C. § 1326(b).   His constitutional

challenge is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224, 235 (1998).   Although Garcia 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).   Garcia

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.
