                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  February 14, 2007

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 06-40631
                          Conference Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

MARIANO ORNELAS-ARAIZA,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:05-CR-852-ALL
                       --------------------

Before BARKSDALE, GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Mariano Ornelas-Araiza (Ornelas) appeals his guilty-plea

conviction and sentence for being an alien found unlawfully in

the United States after deportation and after having been

convicted of an aggravated felony.    He was sentenced to 77 months

of imprisonment and three years of supervised release.

     Ornelas argues that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional.

Ornelas’s constitutional challenge is foreclosed by

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

     *
       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this opinion should not be published and is not precedent except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. 06-40631
                                  -2-

Although Ornelas 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).    Ornelas 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.

     Ornelas also argues that the district court erred in

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

condition of supervised release and, therefore, that this

condition should be vacated.    As Ornelas concedes, this claim is

not ripe for review.     See 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.

     JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART.
