                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 23, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 05-40479
                        Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JORGE MARTINEZ-GASCA,

                                     Defendant-Appellant.


                        --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 5:04-CR-1796-ALL
                        --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Jorge Martinez-Gasca pleaded guilty to illegal reentry after

deportation and was sentenced to 45 months of imprisonment and

three years of supervised release.   Martinez-Gasca 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 that this condition should therefore be vacated.     This claim

is dismissed for lack of jurisdiction because it is not ripe for

review.   See United States v. Riascos-Cuenu, 428 F.3d 1100, 1101-

     *
       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this opinion should not be published and is not precedent except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. 05-40479
                                 -2-

02 (5th Cir. 2005), petition for cert. filed (Jan. 9, 2006) (No.

05-8662).

     Martinez-Gasca’s constitutional challenge to the

“felony” and “aggravated felony” provisions of 8 U.S.C.

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

523 U.S. 224, 235 (1998).   Although Martinez-Gasca 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).    Martinez-

Gasca 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.
