                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 14, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-40771
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE ANTONIO FUENTES-ANAYA,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-862-ALL
                      --------------------

Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.

PER CURIAM:*

     Jose Antonio Fuentes-Anaya (Fuentes) pleaded guilty to

illegal reentry after deportation and was sentenced to 46 months

of imprisonment, two years of supervised release, and a $100

special assessment that was ordered remitted on motion of the

Government.

     Fuentes argues for the first time on appeal that the

district court erred in ordering him to cooperate in the

collection of a DNA sample as a condition of supervised release.


     *
       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this opinion should not be published and is not precedent except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. 05-40771
                                -2-

This claim is dismissd for lack of jurisdiction because it is not

ripe for review.   See United States v. Riascos-Cuenu, No.

05-20037, ___ F.3d ___, 2005 WL 2660032 at *1-2 (5th Cir. Oct.

18, 2005).

     Fuentes’s constitutional challenge to 8 U.S.C. § 1326(b) is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998).   Although Fuentes 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).   Fuentes 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.

     JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART FOR LACK OF

JURISDICTION.
