                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 18, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-40157
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

GABRIEL RESENDIZ-RIOS,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:04-CR-782-ALL
                      --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Gabriel Resendiz-Rios (Resendiz) appeals the sentence

imposed following his guilty-plea conviction of unlawful entering

the United States after having been deported previously following

an aggravated felony conviction.   Resendiz challenges the

constitutionality of the felony and aggravated felony provisions

of 8 U.S.C. § 1326(b) and the district court’s order that he



     *
       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that this opinion should not be published and is not precedent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. 05-40157
                                -2-

cooperate with the probation officer in the collection of DNA as

a condition of supervised release.

     Although, in a written plea agreement, Resendiz waived the

right to appeal his sentence except for upward departures and a

sentence exceeding the statutory maximum, the Government does not

seek enforcement of the waiver.    Accordingly, the waiver does not

bar this appeal.   See United States v. Story, 439 F.3d 226, 230-

31 (5th Cir. 2006).

     Resendiz’s constitutional challenge to § 1326(b) is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998).   Although Resendiz 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).    Resendiz 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.

     Resendiz also 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.   See United States v. Riascos-Cuenu, 428

F.3d 1100, 1101-02 (5th Cir. 2005), petition for cert. filed
                          No. 05-40157
                               -3-

(Jan. 9, 2006) (No. 05-8662).   The claim is dismissed.   See id.

at 1102.

     JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.
