                                                       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. 05-40269
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSUE VIRGILIO BENEGAS-HERRERA,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-845-ALL
                      --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Josue Virgilio Benegas-Herrera pleaded guilty to being found

in the United States unlawfully after deportation and was

sentenced to 46 months of imprisonment and a three-year term of

supervised release.   Benegas-Herrera argues that the district

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

DNA sample as a condition of supervised release.    This claim is

not ripe for review on direct appeal.   See United States v.

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


     *
       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this opinion should not be published and is not precedent except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. 05-40269
                                 -2-

for cert. filed (Jan. 9, 2006) (No. 05-8662).   The claim is

dismissed.   See id. at 1102.

     Benegas-Herrera’s constitutional challenge to 8 U.S.C.

§ 1326(b) is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224, 235 (1998).   Although Benegas-Herrera 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).   Benegas-

Herrera 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.
