                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 23, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-40668
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE ALFREDO ALDANA-SANABRIA,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 1:04-CR-846
                      --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Jose Alfredo Aldana-Sanabria appeals his sentence under

8 U.S.C. § 1326 for illegal re-entry into the United States after

having been deported.   First, Aldana-Sanabria asserts that the

district court erred in concluding that his prior state felony

conviction for simple possession of a controlled substance was an

“aggravated felony” for purposes of § 1326(b).   Our precedent

holds that a state felony conviction for simple drug possession

is properly considered an aggravated felony for purposes of


     *
       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this opinion should not be published and is not precedent except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. 05-40668
                                -2-

§ 1326(b).   See United States v. Rivera, 265 F.3d 310, 312-13

(5th Cir. 2001); United States v. Hinojosa-Lopez, 130 F.3d 691,

693-94 (5th Cir. 1997).   Therefore, this issue is without merit,

and we affirm the judgment of the district court with respect to

it.

      Next, Aldana-Sanabria argues 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. Riascos-Cuenu, 428 F.3d 1100, 1102 (5th Cir.

2005), petition for cert. filed (Jan. 9, 2006) (No. 05-8662).

Accordingly, we dismiss this portion of the appeal for lack of

jurisdiction.

      Last, Aldana-Sanabria argues that the “felony” and

“aggravated felony” provisions of 8 U.S.C. § 1326(b) are

unconstitutional.   His challenge is foreclosed by

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

Although Aldana-Sanabria 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 United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),

cert. denied, 126 S. Ct. 298 (2005).   Aldana-Sanabria properly

concedes that his argument is foreclosed in light of
                          No. 05-40668
                               -3-

Almendarez-Torres and circuit precedent, but he raises it here to

preserve it for further review.   Thus, we affirm the judgment of

the district court on this point.

     JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.
