                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                       March 3, 2006

                                                               Charles R. Fulbruge III
                                                                       Clerk
                                No. 05-40412
                              Summary Calendar



                        UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                   versus

                       JOSE ITALO VARGAS-GUILLEN,

                                                     Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 1:04-CR-844-ALL
                        --------------------

Before JONES, Chief Judge, and WIENER and DeMOSS, Circuit Judges.

PER CURIAM:*

     Jose Italo Vargas-Guillen appeals his guilty-plea conviction

of being unlawfully present in the United States after having been

deported   subsequent    to   an   aggravated    felony.    Vargas-Guillen

challenges the constitutionality of 8 U.S.C. § 1326(b)’s treatment

of prior felony and aggravated felony convictions as sentencing

factors rather than elements of the offense that must be found by

a jury in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).             He

also challenges the imposition of collection of his DNA as a term



     *
            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opinion should not be published and is not precedent except under the limited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.
of his supervised release. We need not decide the applicability of

the waiver in this case because the issues that Vargas-Guillen

raises are foreclosed or not ripe for review.

      Vargas-Guillen’s constitutional challenge is foreclosed by

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

Although       Vargas-Guillen         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).       Vargas-Guillen

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.

      For the first time, Vargas-Guillen argues that the district

court abused its discretion in subjecting him to the collection of

DNA   as   a    term     of    his    supervised           release     under    42   U.S.C.

§ 14135A(d).         He argues that the version of 42 U.S.C. § 14135a(d)

that was in effect at the time of the offense does not list his

offense    of    conviction      as    one    of     the    offenses     for    which   DNA

collection was authorized.              He argues that the amendment of that

statute on October 30, 2004, to authorize DNA collection upon

conviction      of    “any    felony”       cannot    be     applied    to     him   because

collection of DNA is a punishment and would violate the Ex Post

Facto Clause.         He further argues that even if application of the

                                              2
statute is not a violation of the Ex Post Facto Clause it is still

forbidden by general principles of nonretroactivity.

       Vargas-Guillen’s     claim    regarding    collection    of   DNA   on

supervised release is not ripe for review.             See United States v.

Riascos-Cuenu, 428 F.3d 1100, 1002 (5th Cir. 2005).                  Vargas-

Guillen’s   claim   is   DISMISSED   for   lack   of   jurisdiction.       The

judgment of the district court is AFFIRMED.

                                 DISMISSED IN PART; AFFIRMED IN PART.




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