                                                       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. 05-40195
                        Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

PABLO VALLEJO-MORENO,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-1537-ALL
                       --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Pablo Vallejo-Moreno (Vallejo) appeals his sentence under

8 U.S.C. § 1326 for attempted illegal reentry into the United

States after having been deported.   Vallejo asserts that the

district court erred in concluding that his prior state felony

conviction for simple possession of cocaine and marijuana was an

“aggravated felony” for purposes of § 1326(b).    Vallejo’s

argument is foreclosed by circuit precedent.     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this opinion should not be published and is not precedent except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. 05-40195
                                 -2-

v. Rivera, 265 F.3d 310, 312-13 (5th Cir. 2001); United States v.

Hinojosa-Lopez, 30 F.3d 691, 693-94 (5th Cir. 1997).

     Vallejo also argues that the “felony” and “aggravated

felony” provisions of § 1326(b) are unconstitutional.    This

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

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

     Vallejo 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 that this condition should therefore be

vacated.   He contends that the collection of his DNA violates the

Fourth Amendment.    Vallejo concedes that the issue is not ripe

for review but raises the issue to preserve it for further

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

(5th Cir. 2005), petition for cert. filed (Jan. 9, 2006)

(05-8662).   As Vallejo concedes, this court lacks jurisdiction to

consider the issue.    See id.

     JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.
