                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 14, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-40954
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ARMANDO ARELLANO-DELGADO,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:05-CR-965-ALL
                       --------------------

Before BARKSDALE, GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Armando Arellano-Delgado appeals his guilty-plea conviction

and sentence for attempted unlawful reentry into the United

States after deportation for an aggravated felony conviction.         He

was sentenced to 72 months of imprisonment and three years of

supervised release.

     Arellano argues that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional.

Arellano’s constitutional challenge is foreclosed by

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

     *
       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this opinion should not be published and is not precedent except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. 06-40954
                                  -2-

Although Arellano 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).    Arellano 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.

     Arellano also argues that the district court erred in

ordering him to cooperate in the collection of a DNA sample as a

condition of supervised release and, therefore, that this

condition should be vacated.    As Arellano concedes, this claim is

not ripe for review.     See United States v. Carmichael, 343 F.3d

756, 761-62 (5th Cir. 2003).    Accordingly, this portion of the

appeal is dismissed for lack of jurisdiction.

     JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.
