                                                                                          United States Court of Appeals
                                                                                                   Fifth Circuit
                                                                                                F I L E D
                       IN THE UNITED STATES COURT OF APPEALS
                                                                                                   April 5, 2006
                                    FOR THE FIFTH CIRCUIT
                                                                                             Charles R. Fulbruge III
                                                                                                     Clerk


                                             No. 05-40183
                                           Summary Calendar



UNITED STATES OF AMERICA,

                                                                                           Plaintiff-
                                                            Appellee,

                                                   versus

JOSE EFRAIN AYALA,

                                                                                         Defendant-
                                                            Appellant.

                        --------------------------------------------------------------
                             Appeal from the United States District Court
                                   for the Southern District of Texas
                                        USDC No. 5:04-CR-1778
                        --------------------------------------------------------------

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*

        Having pleaded guilty to illegal reentry following deportation in violation of 8 U.S.C. § 1326,

Jose Efrain Ayala argues that his sentence violates United States v. Booker** because the district court

applied the United States Sentencing Guidelines as mandatory rather than discretionary; that his



        *
           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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
        **
             543 U.S. 220 (2005).
sentence under 8 U.S.C. § 1326(b) is unconstitutional in light of Apprendi v. New Jersey***; and that

district court abused its discretion by requiring that Ayala cooperate with the probation officer in the

collection of DNA as a condition of supervised release.

       The Government concedes that Ayala preserved his challenge to the application of mandatory

sentencing guidelines by objecting that the sentencing proceeding violated Blakely v. Washington.****

As the sentencing transcript is devoid of evidence that the district court would have imposed the same

sentence under an advisory regime, the Government has not borne its burden of establishing that the

district court’s error was harmless. See United States v. Walters, 418 F.3d 461, 464 (5th Cir. 2005).



       Ayala’s argument that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)

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

Although Ayala 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). Ayala 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.

       Ayala’s challenge to a condition of his supervised release requiring that he cooperate with the

probation officer in the collection of a DNA sample is not ripe for review on direct appeal. United

States v. Carmichael, 343 F.3d 756, 761-62 (5th Cir. 2003), cert. denied, 540 U.S. 1136 (2004); see


       ***
              530 U.S. 466 (2000).
       ****
              542 U.S. 296 (2004).

                                                 -2-
United States v. Riascos-Cuenu, 428 F.3d 1100, 1101-02 (5th Cir. 2005), petition for cert. filed,

(U.S. Jan. 9, 2006)(No. 8662). Accordingly, we dismiss this argument for lack of appellate

jurisdiction.

        AFFIRMED IN PART; VACATED IN PART AND REMANDED FOR RESENTENCING;

DISMISSED IN PART FOR LACK OF JURISDICTION.




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