                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 17, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-40576
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JACOBO OSWALDO ORO-HERNANDEZ,
                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                   USDC No. 1:05-CR-1072--ALL
                      --------------------

Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.

PER CURIAM:*

     Jacobo Oswaldo Oro-Hernandez (Oro) appeals his guilty-plea

conviction for illegal reentry, in violation of 8 U.S.C. § 1326,

and resulting 28-month sentence.   Oro’s constitutional challenge

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

523 U.S. 224, 235 (1998).   Although Oro 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.


     *
       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this opinion should not be published and is not precedent except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. 06-40576
                                  -2-

See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),

cert. denied, 126 S. Ct. 298 (2005).     Oro 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.

     Oro next 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.    United States v. Carmichael, 343 F.3d 756, 761-62

(5th Cir. 2003).   Accordingly, this portion of the appeal is

dismissed for lack of jurisdiction.    See id. at 762.

     Oro additionally argues that the district court misapplied

the Sentencing Guidelines by characterizing his state felony

conviction for possession of a controlled substance as an

“aggravated felony” for purposes of U.S.S.G. § 2L1.2(b)(1)(C).

Given the Supreme Court’s recent decision in Lopez v. Gonzales,

127 S. Ct. 625 (2006), Oro is correct.      See United States v.

Estrada-Mendoza, 475 F.3d 258, 259-61 (5th Cir. 2007).     His

conviction is affirmed.    His sentence is vacated, and the case is

remanded for resentencing.    Oro’s motion to summarily affirm in

part and to vacate in part is denied as moot.

     CONVICTION AFFIRMED; APPEAL DISMISSED IN PART; SENTENCE

VACATED AND REMANDED FOR RESENTENCING; MOTION DENIED.
