                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 20, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-41702
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ALICIA LOZOYA-TORRES,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-632-ALL
                      --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Alicia Lozoya-Torres (Lozoya) appeals the 46-month sentence

she received following her guilty plea conviction for illegal

reentry, in violation of 8 U.S.C. § 1326.     She argues that the

district court erred in sentencing her under the mandatory

version of the Sentencing Guidelines, that the sentencing

provisions in § 1326 are unconstitutional, and that the district

court erred by ordering her to cooperate in the collection of a

DNA sample as a condition of supervised release.


     *
       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this opinion should not be published and is not precedent except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. 04-41702
                                 -2-

     The Government urges that Lozoya’s challenge to her sentence

imposed under a mandatory version of the guidelines is barred by

the waiver-of-appeal provision in her plea agreement.   Lozoya

counters that the appeal-waiver provision is invalid because her

plea agreement was accepted before the issuance of United States

v. Booker, 543 U.S. 220 (2005).   This court has recently rejected

that precise argument.    United States v. Burns, 433 F.3d 442,

450-51 (5th Cir. 2005).   The appeal-waiver provision is

enforceable and bars her complaint that she was sentenced under

the formerly mandatory guidelines scheme.

     Lozoya’s constitutional challenge is foreclosed by

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

Although Lozoya 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).   Lozoya properly concedes that her argument is

foreclosed in light of Almendarez-Torres and circuit precedent,

but she raises it here to preserve it for further review.

     Lozoya’s challenge to the special condition of supervised

release that she cooperate in the collection of a DNA sample,

even if not barred by the waiver-of-appeal provision, is not ripe

for review on direct appeal.    See United States v. Riascos-Cuenu,
                           No. 04-41702
                                -3-

428 F.3d 1100, 1101-02 (5th Cir. 2005), petition for cert. filed

(Jan. 9, 2006) (No. 05-8662).   That claim is dismissed for lack

of jurisdiction.   See id. at 1102.

     JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.
