                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                   April 7, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-40340
                          Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

BAUDEL CAMARILLO-DE LA CRUZ,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-779-ALL
                      --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Baudel Camarillo-De La Cruz appeals his guilty-plea

conviction and sentence for being found unlawfully in the United

States after deportation subsequent to an aggravated felony

conviction.    He argues that the district court’s imposition of a

sentence enhanced by his prior drug conviction under U.S.S.G.

§ 2L1.2(b)(1)(B) was reversible plain error because the sentence

imposed for his prior conviction was not a sentence of

imprisonment.   Because Camarillo-De La Cruz did not raise this


     *
       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this opinion should not be published and is not precedent except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. 05-40340
                                 -2-

argument in the district court, review is limited to plain error.

See United States v. Green, 324 F.3d 375, 381 (5th Cir. 2003).

Camarillo-De La Cruz has not shown that the enhancement of his

sentence pursuant to § 2L1.2 was plain or obvious error.     We

rejected this argument in United States v. Garcia-Rodriguez, 415

F.3d 452, 454-56 (5th Cir), cert. denied, 126 S. Ct. 641 (2005),

and noted that two other circuits had rejected this argument.

See id. at 456 (citing United States v. Mullings, 330 F.3d 123,

124-25 (2d Cir. 2003); United States v. Hernandez-Valdovinos,

352 F.3d 1243, 1249 (9th Cir. 2003)).      Therefore, Camarillo-De La

Cruz has not shown that the enhancement of his sentence under

§ 2L1.2 based on his prior conviction was reversible plain error.

       Camarillo-De La Cruz also argues that the district court did

not consider and tailor his sentence to the factors in 18 U.S.C.

§ 3553(a) as required by United States v. Booker, 543 U.S. 220

(2005).    Because he did not raise this issue in the district

court, review is limited to plain error.      See Green, 324 F.3d at

381.    Pursuant to United States v. Alonzo, 435 F.3d 551, 553

(5th Cir. 2006), his sentence, which was within the applicable

guideline range, was presumptively reasonable.     There was no

Sixth Amendment violation because the only enhancement of his

sentence was based on his prior conviction.      See United States v.

Guevara, 408 F.3d 252, 261 (5th Cir. 2005), cert. denied,

126 S. Ct. 1080 (2006).    A review of the sentencing transcript

indicates that the district court considered the nature of the
                           No. 05-40340
                                -3-

offense, Camarillo-De La Cruz’s background, the circumstances

surrounding Camarillo-De La Cruz’s reentry into the United

States, his request for a downward departure, and the need to

protect the public and incapacitate Camarillo-De La Cruz as

required by § 3553(a).   Camarillo-De La Cruz has not shown that

the district court failed to consider the factors in § 3553(a) or

that the sentence was unreasonable.     See Alonzo, 435 F.3d at 553.

     Camarillo-De La Cruz argues that the district court abused

its discretion in imposing a supervised release condition

requiring him to submit a DNA sample.     Camarillo-De La Cruz’s

claim is not ripe for review.   See United States v. Riascos-

Cuenu, 428 F.3d 1100, 1101-02 (5th Cir. 2005).     Because this

claim is not ripe for review, we will not consider Camarillo-

De La Cruz’s claim that the retroactive application of the 2004

amendment to 18 U.S.C. § 3583(d) violates the Ex Post Facto

Clause.

     Camarillo-De La Cruz argues that 8 U.S.C. § 1326 is facially

unconstitutional because it treats 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).   Camarillo-De La Cruz’s

constitutional challenge is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998).     Although he contends

that Almendarez-Torres was incorrectly decided and that a

majority of the Supreme Court would overrule Almendarez-Torres in
                          No. 05-40340
                               -4-

light of Apprendi, 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).    Camarillo-De La Cruz 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.

     AFFIRMED.
