                                                           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. 05-40321
                            Conference Calendar



UNITED STATES OF AMERICA,

                                        Plaintiff-Appellee,

versus

GUSTAVO GUEVARA-BETANCOURT,

                                        Defendant-Appellant.

                           --------------------
               Appeal from the United States District Court
                    for the Southern District of Texas
                         USDC No. 1:04-CR-830-ALL
                           --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

       Gustavo Guevara-Betancourt appeals his guilty-plea

conviction and sentence for being found in the United States,

without permission, following removal.       See 8 U.S.C. § 1326(a),

(b).       Guevara-Betancourt argues that the sentencing provisions in

§ 1326(b) are unconstitutional.      Guevara-Betancourt’s

constitutional challenge is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998).       Although Guevara-

Betancourt contends that Almendarez-Torres was incorrectly


       *
       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this opinion should not be published and is not precedent except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. 05-40321
                                -2-

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).   Guevara-Betancourt 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.

     Guevara-Betancourt also argues that the district court erred

by requiring, as a condition of supervised release, that he

cooperate in the collection of his DNA as directed by his

probation officer.   Guevara-Betancourt’s complaint is not ripe

for review, and we dismiss this part of the appeal.   See United

States v. Riascos-Cuenu, 428 F.3d 1100, 1102 (5th Cir. 2005),

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

     JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.
