                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 9, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-20896
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE HERNANDEZ, also known as Jose R. Hernandez, also known
as Jose Refugio Hernandez, also known as Jose
Hernandez-Refugio,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 4:05-CR-263-ALL
                       --------------------

Before BARKSDALE, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

     Appealing the Judgment in a Criminal Case, Jose Hernandez

raises arguments that are foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998), which held that 8 U.S.C.

§ 1326(b)(2) is a penalty provision and not a separate criminal

offense, and by United States v. Riascos-Cuenu, 428 F.3d 1100,

1101-02 (5th Cir. 2005), petition for cert. filed (U.S. Jan. 9,

2006) (No. 05-8662), which held that a challenge to the district

court's order requiring the defendant to cooperate in the

     *
       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this opinion should not be published and is not precedent except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. 05-20896
                               -2-

collection of a DNA sample as a condition of supervised release

is not ripe for review on direct appeal.   The Government’s motion

for summary affirmance is GRANTED.

     JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.
