                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   April 12, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-41319
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

MARIO PEREZ-SANCHEZ,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:05-CR-354-ALL
                       --------------------

Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

     Mario Perez-Sanchez (Perez) appeals his guilty-plea

conviction and sentence for being an alien found unlawfully in

the United States after deportation and after having been

convicted of a felony.   He was sentenced to 33 months of

imprisonment and three years of supervised release.

     Perez argues that the “felony” and “aggravated felony”

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

Perez’s constitutional challenge is foreclosed by


     *
       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this opinion should not be published and is not precedent except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. 05-41319
                                 -2-

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Perez 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).    Perez 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.

     Perez also argues that the district court erred in ordering

him to cooperate in the collection of a DNA sample as a condition

of supervised release and, therefore, that this condition should

be vacated.    As Perez concedes, this claim is not ripe for

review.    See United States v. Riascos-Cuenu, 428 F.3d 1100, 1102

(5th Cir. 2005), petition for cert. filed (Jan. 9, 2006) (No. 05-

8662).    Accordingly, this portion of the appeal is dismissed for

lack of jurisdiction.

     JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.
