United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 14, 2005

Charles R. Fulbruge III Clerk No. 05-40738 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ISAURO PENA-GARZA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-449-ALL --------------------

Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.

PER CURIAM:*

Isauro Pena-Garza appeals his guilty-plea conviction and

sentence for being found in the United States, without

permission, following deportation. See

(a), (b).

Pena-Garza argues that the sentencing provisions in

(b) are unconstitutional. Pena-Garza’s constitutional

challenge is foreclosed by Almendarez-Torres v. United States,

(1998). Although Pena-Garza contends that

Almendarez-Torres was incorrectly decided and that a majority of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40738 -2-

the Supreme Court would overrule Almendarez-Torres in light of

Apprendi v. New Jersey,

(2000), we have repeatedly

rejected such arguments on the basis that Almendarez-Torres

remains binding. See United States v. Garza-Lopez,

(5th Cir.), cert. denied,

(2005). Pena-Garza

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.

Pena-Garza also argues that the district court erred by

requiring, as a condition of supervised release, that he

cooperate in the collection of his DNA as directed by his

probation officer. Pena-Garza’s complaint is not ripe for

review. See United States v. Riascos-Cuenu, ___ F.3d ___, No.

05-20037,

(5th Cir. Oct. 18, 2005);

United States v. Carmichael,

(5th Cir.

2003). The appeal of this claim is dismissed for lack of

jurisdiction.

Pena-Garza has not established error with respect to his

conviction and sentence. Accordingly, the judgment of the

district court is affirmed.

JUDGMENT AFFIRMED; APPEAL DISMISSED IN PART FOR LACK OF

JURISDICTION.