                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 23, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-40428
                          Summary Calendar



     UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

          versus

     DAVID CHARLES BARBER,

                                          Defendant-Appellant.




           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 1:04-CR-797-ALL



Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.

PER CURIAM:*

     David Charles Barber appeals the sentence imposed following

his November 22, 2004 plea of guilty to one count of possession of

marihuana with intent to distribute on or about September 30, 2004.

Although Barber waived the right to appeal his sentence except for

upward departures and a sentence exceeding the statutory maximum,

the waiver does not bar his appeal. The district court incorrectly



     *
      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opinion should not be published and is not precedent except under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.
informed him that he could appeal an illegal sentence.     Barber’s

challenge to the purportedly unlawful supervised release condition1

is arguably a challenge to an allegedly illegal sentence.       The

Government concedes as much and declines to rely on the waiver.

Moreover, the district court’s incorrect characterization of the

waiver and failure to address the specific provisions of the waiver

and ensure that Barber understood them may have rendered the waiver

not knowing and voluntary.   See United States v. Portillo, 18 F.3d

290, 292 (5th Cir. 1994).    For all these reasons, we conclude that

the waiver does not preclude Barber’s appeal.

     With respect to Barber’s contention that the district court

erred in ordering, as a condition of supervised release, that he

cooperate with the probation officer in the collection of DNA, his

claim is not ripe for judicial review in light of our holding in

United States v. Carmichael, 343 F.3d 756, 758 (5th Cir. 2003),

cert. denied, 540 U.S. 1136 (2004).   We reject Barber’s contention

that Carmichael is distinguishable.    See United States v. Riascos-

Cuenu, ___ F.3d ___ No. 05-20037, 2005 WL 2660032, at *2 (5th Cir.

Oct. 18, 2005). Accordingly, we dismiss this portion of the appeal

for lack of jurisdiction.

     Barber’s second argument, concerning the treatment of drug

quantity graduations as sentencing factors rather than as elements



     1
        Barber was sentenced to 60 months’ imprisonment to be
followed by a 5 year term of supervised released.

                                  2
of   separate   offenses   under   21       U.S.C.   §§   841(a)   and   (b),   is

foreclosed by circuit precedent.            See United States v. Slaughter,

238 F.3d 580, 582 (5th Cir. 2000).             Barber concedes as much and

raises the issue solely to preserve it for further review.                 Thus,

we affirm the judgment of the district court on this point.

  AFFIRMED IN PART; DISMISSED IN PART FOR LACK OF JURISDICTION.




                                        3
