                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 14, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-40489
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ALEJANDRO TONATIUH CABALLERO-MARTINEZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:04-CR-913-ALL
                      --------------------

Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.

PER CURIAM:*

     Alejandro Tonatiuh Caballero-Martinez (“Caballero”) appeals

his guilty-plea conviction and sentence for importation of more

than 500 grams of cocaine into the United States.   For the first

time on appeal, Caballero argues that the district court erred by

requiring him to cooperate in the collection of a DNA sample from

him as a condition of his supervised release.   In United States

v. Riascos-Cuenu, __ F.3d __, 2005 WL 2660032 at *1-2 (5th Cir.

Oct. 18, 2005), a similar challenge was held to be not ripe for


     *
       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this opinion should not be published and is not precedent except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. 05-40489
                                  -2-

review.    Accordingly, this portion of Caballero’s appeal is

dismissed.

     Also for the first time on appeal, Caballero asserts that

the federal drug importation statutes, 21 U.S.C. §§ 952 and 960,

are facially unconstitutional under Apprendi v. New Jersey, 530

U.S. 466 (2000).    Contrary to the Government’s argument,

Caballero did not waive this issue because neither his plea

agreement nor his unconditional guilty plea waived a facial

challenge to the constitutionality of the statutes under which he

was convicted.     See United States v. Knowles, 29 F.3d 947, 952

(5th Cir. 1994) (citing Menna v. New York, 423 U.S. 61, 62-63 n.2

(1975)).    Nevertheless, as Caballero concedes, his argument is

foreclosed on its merits by this court’s opinion in United States

v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000).

     JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART FOR LACK OF

JURISDICTION.
