                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 5, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-40403
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

FERNANDO QUEVEDO-ALVAREZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-855-ALL
                      --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Fernando Quevedo-Alvarez (Quevedo) pleaded guilty to illegal

reentry after deportation and was sentenced to 33 months of

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

special assessment that was ordered remitted on motion of the

Government.

    Quevedo 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 and that this


     *
       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this opinion should not be published and is not precedent except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.   05-40403
                                   -2-

condition should therefore be vacated.        He contends that his

offense is not one of the offenses qualifying an offender for DNA

collection under the DNA Analysis Backlog Elimination Act of 2000

(Act).   He further contends that a 2004 amendment to the Act

broadening the qualifying offenses to “any felony” does not apply

to him because he committed the offense before the amendment was

enacted, and, therefore, application of the amendment either

would violate the Ex Post Facto Clause or would improperly cause

the amendment to operate retroactively.

     Quevedo contends that a waiver-of appeal provision included

in his plea agreement does not bar this claim.        Because the

district court erroneously advised Quevedo that he retained the

right to appeal “an illegal sentence,” without defining what

constituted “an illegal sentence,” the waiver was not made

knowingly and voluntarily, and thus it does not bar this claim.

See United States v. Robinson, 187 F.3d 516, 517 (5th Cir. 1999).

However, this claim is DISMISSED 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 *2 (5th Cir. Oct.

18, 2005).

     Quevedo’s constitutional challenge is foreclosed by

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

Although Quevedo 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.
                           No.   05-40403
                                 -3-

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).   Quevedo 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.
