                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  March 1, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-40267
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

PABLO MORENO-MORA,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-1244-ALL
                       --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Pablo Moreno-Mora (Moreno) appeals his conviction and

sentence for unlawful reentry in violation of 8 U.S.C. § 1326.

Moreno first argues that the district court erred by imposing a

16-level enhancement pursuant to U.S.S.G. § 2L1.2 for a prior

Maryland conviction for a crime of violence.

     The record contains no indication of which section of the

Maryland statute was applied to Moreno.     Accordingly, we cannot

determine whether the enhancement was proper.    The Government’s


     *
       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this opinion should not be published and is not precedent except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. 05-40267
                                 -2-

contention that the offense is established by the Presentence

Report’s characterization of the offense as second-degree felony

assault is without merit.   See United States v. Garza-Lopez, 410

F.3d 268, 274 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).

Accordingly, we vacate the sentence and remand for resentencing

in accordance with the procedure set forth in United States v.

Bonilla-Mungia, 422 F.3d 316, 321-22 (5th Cir. 2005).   We do not

reach Moreno’s alternative argument that the sentence was

unreasonable under 18 U.S.C. § 3553(a).

     With respect to Moreno’s contention that the district court

erred in ordering, as a condition of supervised release, that he

cooperate with the probation officer in the collection of DNA,

his claim is not ripe for judicial review in light of our holding

in United States v. Carmichael, 343 F.3d 756, 758 (5th Cir.

2003), cert. denied, 540 U.S. 1136 (2004).   We reject Moreno’s

contention that Carmichael is distinguishable.   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, we

dismiss this portion of the appeal for lack of jurisdiction.

     Moreno’s constitutional challenge to § 1326(b) is foreclosed

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

Although Moreno 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
                           No. 05-40267
                                -3-

basis that Almendarez-Torres remains binding.   See Garza-Lopez,

410 F.3d at 276.   Moreno 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.

     CONVICTION AFFIRMED; APPEAL DISMISSED IN PART FOR LACK OF

JURISDICTION; SENTENCE VACATED AND REMANDED FOR RESENTENCING.
