                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 January 31, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 05-40222
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

CHUY J. ALCALA,

                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                       USDC No. 5:03-CR-1775-ALL
                          --------------------

Before REAVLEY, HIGGINBOTHAM and CLEMENT, Circuit Judges.

PER CURIAM:*

     Chuy J. Alcala appeals his guilty-plea conviction of

possession with intent to distribute a quantity in excess of 50

grams of methamphetamine.     Alcala argues that the district court

reversibly erred in failing to rule on his request for a downward

departure.     He asserts that a court’s failure to comply with FED.

R. CRIM. P. 32(i)(3)(B) may be raised for the first time on appeal

and requires resentencing.     He contends that it is undisputed




     *
       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this opinion should not be published and is not precedent except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. 05-40222
                                 -2-

that the district court failed to rule on or make any findings

with respect to his downward-departure motion.

     By imposing a sentence within the guideline range

immediately after hearing defense counsel’s argument in favor of

a downward departure, the district court implicitly denied the

motion.    See United States v. Como, 53 F.3d 87, 90 (5th Cir.

1995).    The record does not indicate that the district court

mistakenly believed it lacked authority to downwardly depart.

Therefore, we lack jurisdiction to review the district court’s

implicit denial of Alcala’s downward-departure motion.     See

United States v. Landerman, 167 F.3d 895, 899 (5th Cir. 1999).

     Alcala also argues that the district court abused its

discretion and reversibly erred when it imposed the collection of

his DNA as a condition of his supervised release.    He argues that

the version of the 42 U.S.C. § 14135a(d) in effect at the time of

the offense did not include his crime of conviction.     He asserts

that the application of the amendment of that statute to include

any felony conviction would violate the Ex Post Facto Clause.      He

further asserts that, even if DNA collection is not considered a

punishment for purposes of the Ex Post Facto Clause, the

application of the amendment to him violates general rules of

retroactivity.    Alcala’s claim regarding collection of DNA on

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

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

the judgment to vacate this condition of supervised release.
                             No. 05-40222
                                  -3-

     Finally, Alcala argues that, given the Supreme Court’s

decision in Apprendi v. New Jersey, 530 U.S. 466 (2000),

21 U.S.C. § 841(a) and (b) are unconstitutional.   He concedes

that his argument is foreclosed under United States v. Slaughter,

238 F.3d 580, 582 (5th Cir. 2000), but states that he wishes to

preserve the issue for possible further review.    We have

specifically rejected the argument that Apprendi rendered the

provisions of 21 U.S.C. § 841 unconstitutional.    See Slaughter,

238 F.3d at 582; see also United States v. Valenzuela-Quevedo,

407 F.3d 728, 731 (5th Cir.), cert. denied, 126 S. Ct. 267

(2005).

     AFFIRMED AS MODIFIED.
