                                                       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. 05-20402
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

ALFREDO GARCIA-ARIOLA,
                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 4:04-CR-571-ALL
                      --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Alfredo Garcia-Ariola appeals his sentence for illegal

reentry into the United States after deportation following a

conviction for an aggravated felony, in violation of 8 U.S.C.

§ 1326(a) and (b).

     Garcia-Ariola challenges, for the first time on appeal, the

constitutionality of § 1326(b)’s treatment of prior felony and

aggravated felony convictions as sentencing factors rather than

elements of the offense that must be found by a jury in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000).   Garcia-Ariola’s

     *
       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this opinion should not be published and is not precedent except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. 05-20402
                                -2-

constitutional challenge is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998).   Although Defendant

contends that Almendarez-Torres was incorrectly decided and that

a majority of the Supreme Court would overrule Almendarez-Torres

in light of Apprendi, 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).   Garcia-Ariola 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.   Garcia-Ariola’s sentence is affirmed.

     Garcia-Ariola also argues, for the first time on appeal,

that the district court erred by ordering him to cooperate in the

collection of a DNA sample as a condition of his 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, 1101-02 (5th Cir. 2005), petition for cert. filed

(Jan. 9, 2006) (No. 05-8662).

     JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.
