                                                       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. 05-40602
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE MARLON RODRIGUEZ-APARIZIO,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                      USDC No. 5:04-CR-1992-1
                        --------------------

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

PER CURIAM:*

     Jose Marlon Rodriguez-Aparizio pleaded guilty to illegal

reentry after deportation and was sentenced to 50 months of

imprisonment, to be followed by three years of supervised

release.

     Rodriguez 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


     *
       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this opinion should not be published and is not precedent except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. 05-40602
                                -2-

not ripe for review.   See United States v. Riascos-Cuenu, ___

F.3d ___, No. 05-20037, 2005 WL 2660032 at *1-2 (5th Cir. Oct.

18, 2005).

     Rodriguez also challenges the constitutionality of 8 U.S.C.

§ 1326(b).   His constitutional challenge is foreclosed by

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

Although Rodriguez 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).   Rodriguez 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.

     JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART FOR LACK OF

JURISDICTION.
