                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 December 12, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-40443
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JUAN MARTINEZ-CATALAN,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-2099-ALL
                       --------------------

Before KING, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Juan Martinez-Catalan (Martinez), appeals his guilty plea

conviction of, and sentence for, violating 8 U.S.C. § 1326 by

illegally reentering the United States after deportation.        He

argues, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000),

that the 48-month term of imprisonment imposed in his case

exceeds the statutory maximum sentence allowed for the § 1326(a)

offense charged in his indictment.   He challenges the

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


     *
       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this opinion should not be published and is not precedent except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. 05-40443
                                -2-

aggravated felony convictions as sentencing factors rather than

elements of the offense that must be found by a jury.

     Martinez’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although he 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).    Martinez

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.

     Martinez contends that the district court erred by ordering

him to cooperate in the collection of a DNA sample as a condition

of supervised release.   As Martinez concedes, 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

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

dismissed.   See id. at 1102.

     JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.
