                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  March 3, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-40530
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

LUCAS ORLANDO ARGUETA-RAMIREZ,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-1352-ALL
                       --------------------

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Lucas Orlando Argueta-Ramirez appeals his guilty-plea

conviction and sentence for illegal entry, in violation of 8

U.S.C. § 1326.    The Government’s motion to supplement the record

on appeal is GRANTED.    Argueta-Ramirez’s motion to strike the

Government’s brief, in whole or in part, is DENIED.

     Argueta-Ramirez argues first that the district court plainly

erred when it classified his prior state conviction as a drug

trafficking offense that warranted a 12-level enhancement under


     *
       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this opinion should not be published and is not precedent except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. 05-40530
                                  -2-

U.S.S.G. § 2L1.2(b)(1)(B).    Argueta-Ramirez is correct.

California Health & Safety Code § 11352(a), the state statute

under which Argueta-Ramirez was convicted, is worded so that

some, but not all, violations of the statute constitute a drug

trafficking offense consistent with the guidelines definition,

and the documents introduced by the Government to support the

enhancement indicate only that Argueta-Ramirez had been convicted

of violating that state statute.    See United States v. Garza-

Lopez, 410 F.3d 268, 273-74 (5th Cir.), cert. denied, 126 S. Ct.

298 (2005); United States v. Gutierrez-Ramirez, 405 F.3d 352,

352-60, cert. denied, 126 S. Ct. 217 (2005).    Moreover, the

statements made by the district court after Argueta-Ramirez’s

plea was entered do not enlighten this court as to the basis for

the district court’s adjudication of guilt.    See Shepard v.

United States, 125 S. Ct. 1254, 1257 (2005); see also Garza-

Lopez, 410 F.3d at 274.

     Argueta-Ramirez 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.

This claim is dismissed for lack of jurisdiction because it is

not ripe for review.   See States v. Riascos-Cuenu, 428 F.3d 1100,

1101-02 (5th Cir. 2005).   Argueta-Ramirez properly concedes that

his argument is foreclosed in light of Riascos-Cuenu, but he

raises it here to preserve it for further review.
                           No. 05-40530
                                -3-

     Finally, Argueta-Ramirez challenges the constitutionality of

8 U.S.C. § 1326(b)’s treatment of prior felony and aggravated

felony convictions as sentencing factors rather than elements of

the offense that must be found by a jury in light of Apprendi v.

New Jersey, 530 U.S. 466 (2000).   This constitutional challenge

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

224, 235 (1998).   Although Argueta-Ramirez 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 Garza-Lopez, 410 F.3d at 276.   Argueta-

Ramirez 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.

     APPEAL DISMISSED IN PART FOR LACK OF JURISDICTION;

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED; MOTION TO

SUPPLEMENT RECORD GRANTED; MOTION TO STRIKE BRIEF DENIED.
